- (1.)THIS is a petition under Article 266 of the Constitution challenging the election of the Sarpanch of the Gram Panchayat, Bhalka, district Gwalior. After the election of the Panchas, a meeting was called for the election of the Sarpanch. That meeting was held on August 5, 1970. Sughar Singh (respondent No. 3) was declared elected. The contention in this petition is that the election is void for various reasons.
(2.)THE petitioner's contention is that the meeting to hold the election of the sarpanch was not called by the competent authority. Relying on Sections 29 and 30 of the Panchayats Act and the rules made thereunder it is contended that every meeting of the Gram Panchayat must be called by the Sarpanch and since the meeting for the election of the Sarpanch under Section 21 of the Act is a meeting of the Gram Panchayat, it must be called by the Sarpanch. This contention must be rejected. Sections 29 and 30 are general provisions for meetings of Gram panchayat and the procedure for such meetings. But Section 21 of the Act is a special provision for the election or appointment or the Sarpanch and the Up-Sarpanch, which is to be held in the first meeting fixed under Section 19 (2) of the act. Sub-section (3) of Section 21 empowers the State Government to make rules for regulating the mode and time of election or appointment of the Sarpanch and the Up-Sar-panch.
(3.)BY notification No. 167-464-XVIII-Rules, dated July 29, 1963, the State government made rules under Sections 5 (2), 12, 20 and 21 (3) of the Act. (See m. P. Rajpatra dated August 9, 1963, Part II, page 593 ). It is an elementary principle of law that a general statute must yield to a Special statute. The provisions of Section 12 and the rules made thereunder will, therefore, govern the meeting for election of the Sarpanch and Up-Sarpanch. Rule 78 contains the provisions for a meeting for co-opting Panchas within the meaning of Section 19 (1) of the Act. Rule 79 reads thus:-" 79. Election of Sarpanch and Up-Sarpanch. The procedure of election of the Sarpanch and Up-Sarpanch shall be the same as provided in Rule 78. " it was argued that these rules were framed under Section 12 of the act as printed in M. P. Local Acts by T. C. Shrivastava (1966 Edn. Vol. 7, page 5019) and M. P. Local Acts by R. K. Pandey (Vol. V, 1966 Edition at page 4011) and since Section 12 relates to the election and co-option of "panchas" of a Gram Panchayat but not the "sarpanch", these rules were not applicable to the election of a Sarpanch or an up-Sarpanch. This argument is misconceived. In the two commentaries, referred to above, there is no mention of the section under which these rules were framed. We have verified from the original (supra ). These rules were framed not only under Section 12, but also under Section 21, among others.