BHAVE J -
(1.) THIS order will dispose of Miscellaneous Petitions Nos. 21 of 1966 and 1 of 1967.
(2.) THE petitioner in both these petitions is one Halke, who is a Panch of Dinara Gram Panchayat constituted under the Madhya Pradesh Panchayats Act, 1962. THE elections to the Gram Panchayat took place in January, 1965 and the petitioner as well as Ramnath, Shiv Dayal, Govind Kumari and some others were elected as Panchas of the Panchayat. THEreafter, the election of Sarpanch of the Panchayat was held on 31st January, 1965 in which Ramnath was declared elected defeating Govind Kumari, who was the only rival candidate at the election. It is not disputed that Ramnath is and has been from before the date of bis election as a Panch, a Patel of village Dinara appointed under section 222 of the Madhya Pradesh Land Revenue Code, 1959. THE petitioner filed an election petition before the Sub-Divisional Officer claiming that the election of Ramnath as Sarpanch should be declared void and Govind Kumari should be declared to be elected. THE petition was based on the ground that Ramnath being a Patel was in the service of the State Government and was for that reason disqualified to be elected Sarpanch and his nomination paper was wrongly accepted and Govind Kumari, the only duly nominated candidate, should have been declared to be elected without any contest. THEre were other points raised in the election petition, but it is not necessary now to go into them. THE Sub-Divisional Officer, who tried the election petition, held that a Patel is not a person in the service of the State Government, and that Ramnath was not disqualified from being elected as Sarpanch and his election was valid. On this finding, the election petition was dismissed. Against this order the petitioner has filed Miscellaneous Petition No. 21 of 1966. In this petition the relief claimed is that the order of the Sub-Divisional Officer dismissing the election petition be quashed, the election of Ramnath as Sarpanch be declared void and Govind Kumari be declared to be elected. THE petitioner has also filed Miscellaneous Petition No. 1 of 1967, in which he seeks issuance of a writ in the nature of quo warranto calling upon Ramnath and Shiv Dayal to show under what authority they are holding the office of Panch. THE petitioner claims that Ramnath being a Patel and Shiv Dayal being a Patwari, they were disqualified for being elected or for continuing as Panch. It is not necessary to say anything concerning Shiv Dayal any further, because he has resigned his office of Panch. THE question whether his election as a Panch or his continuance as a Panch was valid is now merely academic and the Miscellaneous Petition No. 1 of 1967 has become infructuous to that extent.
We first take up the Miscellaneous Petition No. 21 of 1966. The first question in this petition is whether Ramnath being a Patel was in the service of the State Government and therefore, not qualified to be elected as Sarpanch,
The relevant statutory provisions are contained in sections 14 and 17 (1) (d) which read as follows:
"S. 14. Qualification of candidate.- Every person whose name is included in the list of voters shall, unless disqualified under section 17 or under any other law for the time being in force, be qualified to be elected, appointed or co-opted, as the case may be, under this Act as Sarpanch, Up-Sarpanch or a Panch of a Gram Panchayat."
"S. 17. Disqualifications for being Panch, Sarpanch or Up-Sarpanch of Gram Panchayat- (1) No person shall be eligible to be a Panch, Sarpanch or an Up-Sarpanch of Gram Panchayat who- (d) holds an office of profit under the Panchayat or is in the service of any local authority or the Central or State Government;"
(3.) THE argument of the learned counsel appearing for Ramnath is that a Patel appointed under section 222 of the Madhya Pradesh Land Revenue Code is not a person in the service of the State Government, and therefore, such a person is not disqualified for being chosen a Panch or Sarpanch. This point is however, concluded in favour of the petitioner by the decision of a Divisional Bench of this Court in Manohartai Gupta v. Gangaram(1956 MPLJ 898), where it was held that a Patel is in the service of the State Government and is disqualified under section 17 (1) (d) of the Panchayat Act. Following that case, we hold that Ramnath, being a Patel, was disqualified to be Sarpanch. As the disqualification existed at the time of election, he was not qualified under section 14 to be elected as Sarpanch, for in terms of that section a person to be qualified must not be disqualified under section 17. THE disqualification under section 17 (1) (d) being for both, a Panch and Sarpanch, it is of no consequence that on the date of election of Sarpanch Ramnath, although disqualified, was holding the office of a Panch. He being a Patel, was disqualified to be a Sarpanch and his nomination paper ought not to have been accepted. As there were only two candidates at the election, the only candidate that remained in the field after eliminating Ramnath was Govind Kumari and she should have been declared as elected uncontested. Under Rule G of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification For Membership) Rules, 1962 relief can be claimed in an election petition for declaration that the election of the returned candidate is void and that any other candidate has been duly elected. Under Rule 24, the prescribed authority is given power to make an order declaring the election of the returned candidate to be void and also declaring that any other candidate has been duly elected. In the instant case, the Sub-Divisional Officer refused to make the declarations claimed by the petitioner on an apparent error of law that Ramnath, although a Patel, was not disqualified under section 17 of the Act. THE order of the Sub-Divisional Officer dismissing the election petition has, therefore, to be quashed under Article 226 of the Constitution, We can also make the requisite declarations in exercise of our power under Article 227 of the Constitution, Hari Vishnu Kamath v. Syed Ahmed Ishaque and ethers(1955 NLJ 1=AIR 1955 SC 233=1955 1SCR 404); and we are of the view that this is a fit case where that should be exercised.
We now come to the Miscellaneous Petition No. 1 of 1967 which challenges the continuance in office of Ramnath as a Panch on the ground that he being a Patel is disqualified to hold that office.;