Tyagi, J - (1.) THIS is a writ petition under Article 226 of the Constitution filed by the petitioners who claim themselves as co-opted members of the Jetasar Gram Panchayat, praying that the judgment pronounced by the learned Civil Judge, Ratangarh, on 16th of April, 1962 as an Election Tribunal while disposing of an election petition No. 220 of 1961 under rule 78 of the Rajasthan Panchayats and Nyaya Panchayat Election Rules, 1960 be quashed.
(2.) IT is necessary to mention in this case that the petitioners have not put on record even a single document, except the judgment of the learned Tribunal, which were referred during the course of arguments by the petitioners and found necessary for deciding this writ petition. This is a novel procedure adopted by the petitioners. In matters where writ of certiorari is prayed, it is necessary for the petitioners or the opposite parties to place on record every document which, in their opinion, is necessary for the disposal of the petition. In the absence of any document on the file of this Court, the original record was summoned and the writ petition is decided by referring to the documents filed before the Tribunal. The fact giving rise to this petition are that alter the general election of the Gram Panchayat, Jetasar, held on 17th of December, 1960, the Sarpanch issued a notice under rule 51 (1) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as the Election Rules), calling a special meeting of the newly elected Panchas on 6th of January, 1961, to co-opt two lady members, as not a single lady could return to the Panchayat through election. It is alleged that in the Panchayat which consisted of eight members, the Sarpanch had a following of only one Panch and, therefore, he entertained an apprehension that he would not succeed to get the two ladies of his choice to be co-opted to the Panchayat, and, therefore, the Sarpanch addressed a letter to the Collector a day before the meeting, i. e. , on 5th of January, 1961, informing him that he would be busy in assisting the police party in some criminal matter, and hence it would not be possible for him to conduct the special co-option meeting of the Panchayat on 6th January, 1961, and therefore, the meeting of the 6th January, 1961, would be adjourned to 15th January, 1961. The case of the Sarpanch was that he had issued notices to the Panchas intimating them about the adjournment of the meeting and requesting them to attend the adjourned special meeting on the 15th of January, but this notice, as alleged by the Panchas, was never received by them. It is allaged that seven out of the eight elected Panchas met on 6th January, 1961, at the appointed time and place as notified in the notice, but the Sarpanch did not attend the meeting even though he was present in the village. When the Panchas came to know that he was avoiding to come to the meeting, the Panchas present elected under rule 53 one Shri Tejsingh Panch to preside over the meeting wherein proceedings were taken to co-opt two lady members and as a result thereof Smt. Janki and Smt. Moolki were declared duly co-opted. It is contended that the proceedings of the meeting of 6th January, 1961 as recorded by Shri Tej Singh were forwarded under rule 54 (2) to the Collector. Before the names of the co-opted ladies were published under sub-rule (5) of rule 54 by the Collector, the Sarpanch called another meeting on 15th of January, 1961, for the purpose of co-opting lady members to the Panchayat. Seven Panchas, who were present in the meeting held on 6th January, 1961 decided to attend the meeting of the 15th January, 1961, to raise objection about its validity, but in the meeting when they assessed their strength, they proposed to set up their candidates once again and filed the nomination papers of Smt. Janki and Smt. Moolki. The grievance of the seven Panchas is that the nomination papers of both their candidates were rejected by the Sarpanch on the ground that they were received by him after the time as notified in the notice for the receipt of such nomination papers had expired, though actually the nomination papers were filed by them within time. The Sarpanch, however, without taking any proceedings declared Smt. Anchi and Smt. Sirdari as duly co-opted members of the Panchayat. Election petition under rule 78 of the Election Rules was, therefore, filed by Tejsingh on various grounds alleging some mala fide actions of the Sarpanch. This petition was decided by the learned Civil Judge, Ratangarh, on 16th of April, 1962, declaring that the co-option proceedings held on 15th of January, 1961, were illegal and as such Smt. Anchi and Smt. Sirdari, who were declared duly co-opted by the Sarpanch in the meeting of the 15th January, 1961, cannot be considered as duly co-opted members of the Panchayat. The Tribunal further held that Smt. Moolki and Smt. Janki, who were declared as co-opted members on 6th January, 1961, shall therefore be considered as duly co-opted members of the Jetasar Panchayat. It is against this judgment of the Tribunal that Smt. Anchi and Smt. «sirdari have filed the present writ petition and have raised the following questions for the decision of this Court : (1) That no meeting could be held on 6th of January, 1961, after the notice of adjournment of the same was sent by the Sarpanch to the Collector, as well as to the Panchas. (2) That even if a meeting was held on 6th of January, 1961, the presiding person, who was elected from amongst the Panchas, had no authority to receive nomination papers under rule 52 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, and as such, no valid co-option could take place. (3) That in fact no nomination papers of Smt. Janki and Smt. Moolki were received by Tejsingh and, therefore, the proceedings of the meeting drawn by Tejsingh and forwarded by him to the Collector, are all fake. (4) That Shri Tejsingh in clear violation of the mandatory provision of rule 45 (2) did not send the nomination papers of Smt. Janki and Smt. Moolki to the Collector, and therefore this non-compliance of rule 45 (2) has vitiated the co-option. Learned counsel for the opposite parties has raised a preliminary question that the finding of fact as decided by the learned Tribunal cannot be reopened before this Court in the exercise of its extraordinary jurisdiction unless the decision is perverse and is based on no evidence on the record. Learned counsel for the petitioners Mr. Guman Mal Lodha has conceded at the close of his arguments that if there is any evidence on the record which is believed by the learned Tribunal, he would not like to challenge the finding of fact of the learned Tribunal, and in view of this stand, the learned counsel for the petitioners did not press his point No. 3 which relates purely to the finding of fact. I am, therefore, now left to discuss only with three points viz points Nos. 1, 2 and 4. There is no evidence on record to show that the contents of the letter of 5th of January, 1961, addressed by the Sarpanch to the Collector, intimating his intention to adjourn the meeting of the Panchayat which was called for 6th of January, 1961, were communicated to the individual Panch or it was in any manner exhibited by the Sarpanch to inform the Panchas that the meeting was adjourned. The learned counsel for the opposite parties has, however, raised during the course of argument another important question whether the Sarpanch had any authority in law to adjourn such a meeting when notices for calling the meeting on 6th January, 1961 were duly served on the individual Panchas. I feel, I need not go into this aspect of the question as raised by Mr. Sobhagmal, as the first point can be disposed of on its factual aspect alone. It is clear from the record that the Sarpanch did not, in any manner, notify the adjournment of the meeting of 6th January, 1961, to the Panchas and, therefore, in the absence of any such notice of adjournment, the Panchas had a right to assemble and hold a meeting, and also in the absence of the Sarpanch they had a right to elect a Panch from amongst those who were present there to conduct the proceedings of that meeting. The letter addressed by the Sarpanch to the Collector, it so appears, was kept a guarded secret and it came to the knowledge of the opposite parties only when the Collector's file was inspected by the opposite parties to file the election petition before the Tribunal. The Panchas were deliberately kept in dark about the adjournment of the meeting of 6th January, 1961, and in view of this fact, I am of the opinion that the Panchas were within their rights to meet and hold the meeting at the appointed time and place on 6th January, 1961. . The second contention of Mr. Lodha is that under rule 52 of the Election Rules, nobody except the Sarpanch, secretary or an officer appointed by the Collector in this behalf could receive the nomination papers of the candidates and, therefore, if any nomination papers were received by Shri Tejsingh in that meeting of 6th January, 1961, they could not be used for conducting co-option proceedings. It may be mentioned that according to the notice issued by the Sarpanch for calling the meeting of the Panchas on 6th January, 1961, the nomination papers were to be received between 12 noon and 2 p. m. on the day of the meeting. It is also an admit-tedcase of both the parties that in the meeting of the 6th January, 1961, neither the Sarpanch nor the Secretary nor any other officer appointed by the Collector in this behalf was present to receive nomination papers, and therefore the nomination papers of Smt. Janki and Smt. Moolki could be received and were actually received by Shri Tejsingh who was elected to preside over the meeting. Mr. Lodha has strenuously urged that under the Election Rules Tejsingh was an unauthorised person to receive nomination papers and, therefore, the co-option proceeding of 6th January, 1961, based on such nomination papers which were received by an unauthorised person - Shri Tejsing - suffers from an illegality that vitiates the co-option of Mst. Janki and Moolki. I regret, I cannot accept this contention of Mr. Lodha as it does not find support from the scheme of co-option as laid down in the Election Rules. Under rule 52 of the Election Rules, nomination papers of the prospective candidates for co-option can be filed by any qualified Panch who has been declared duly elected to the Panchayat on or before the date and the time fixed in the notice. It clearly means that it is not incumbent that the nomination papers should be filed only on the date and during the hours as specified in the noitce, they could be tendered and received even before the hour and the date mentioned in the notice. Persons authorised under rule 52 for receiving and making endorsement of the receipt of nomination paper thereon are those who are generally available for such purpose even before the meeting actually commences. It may be noted that in the scheme of co-option proceedings it is generally the Sarpanch who conducts the special meeting called for this purpose, and therefore if any time is fixed by the Sarpanch for the receipt of nomination papers even when the meeting is in session, then, in that event, the Sarpanch who, in normal course, presides over such meeting, could receive the nomination papers during the meeting hours also, and if the Sarpanch, for one reason or the other, is absent then the person who has been elected under the proviso to rule 53 (1) to act in the absence of the Sarpanch, must also be entitled to receive the nomination papers as he, in fact, is a substitute for the Sarpanch to conduct that meeting. Mr. Lodha's contention that the perusal of sub-rule (2) of rule 53 gives an indication that the meeting for co-option under this rule starts only when the nomination papers have already been received and, it is why the opening words of sub-rule (2) are "upon the commencement of the meeting the presiding person shall examine the notice of nomination one by one " meaning thereby that so long as the time is fixed by the notice for receiving the nomination papers no meeting for co-option can be deemed to commence and, therefore, the person who is elected to preside over the meeting for co-option under the proviso whose function starts with the commencement of the meeting cannot have the authority to function as a presiding officer before 2 p. m. , and as such he would not be in a position to receive the nomination papers. I gave my careful consideration to this contention but I find that the interpretation given by Mr. Lodha to the rule does not fit in with the scheme of the co-option proceedings and, therefore, I cannot accept it. I could not find any prohibition in the rules debarring the Sarpanch or the presiding person to receive nomination papers during the meeting hours, especially when the co-option programme notified under rule 51 (1) by the Sarpanch specifically earmarks a time of two hours between 12 noon and 2 p. m. for the purpose. Opening words of sub-rule (2) of rule 53 should, therefore, be read in the context of the provision of rule 52 in such a manner that a harmonious construction may be given to it. Under rule 52, it is obvious that the nomination papers can be filed by the newly elected Panchas even before the date and hour fixed by the notice under rule 51 (1) and, therefore, keeping this fact in view if the language of sub-rule (2) of rule 53 is perused, then the only natural meaning that can be given to the language of rule 53 is that with the commencement of the meeting the Sarpanch or his substitute the, presiding person, will receive fresh nomination papers up to the time fixed for that purpose in the notice under rule 51 (1), and simultaneously he would start with the scrutiny of those nomination papers which have been received by the Sarpanch or any other person mentioned in sub-rule (2) of rule 52 before the time and date fixed in the notice for receiving nomination papers. Co-option is a process divided into various stages. Receipt of nomination papers is one of the initial stages which gives a start to the co-option proceedings. If the meeting under rule 52 for co-opting members to the Panchayat starts at the proper hour notified by the Sarpanch in the notice, then the receipt of nomination papers during the hours which are earmarked for the purpose of receiving the nomination papers cannot be called, in any manner, an unauthorised act by the person presiding over the meeting. Under these circumstances, if a person who has been elected under the proviso to sub-rule (l) of R. 53 to preside over the meeting for co-option then under the scheme for co-option such a person shall be entitled to receive the nomination papers. I do not find anything objectionable which may go to violate the provisions of the rules if the nomination papers were received by Tejsingh who was duly elected person to preside over the meeting of 6th of January, 1961 and, therefore, co-option proceedings taken in the meeting of the 6th January, 1961 cannot be declared illegal on that account. Learned counsel for the petitioners has also urged that the nomination papers received by Shri Tejsingh of Smt. Janki and Smt. Moolki on 6th of January, 1961, were not forwarded along with the record of proceedings of the meeting to the Collector under rule (2) and, therefore, the co-option proceedings must be declared void as, in his opinion, rule 54 (2) is a mandatory rule, non-compliance whereof would in all circumstances, vitiate the co-option proceedings. I do not find any force in this argument. Compliance to rule 54 (2) is required to be made after the co-option proceedings are over. Co-option is complete as soon as the names of the candidates are declared as duly co-opted by the presiding person under rule 53 (6 ). If the person who is under an obligation to forward the papers to the Collector under sub-rule (2) of rule 54 fails to perfrom his duty after co-option proceedings are completed then he can be accused of dereliction of his duty assigned to him by rule 54 (2), but he cannot be permitted to nullify the co-option proceedings which have already been completed by his subsequent inaction by not forwarding the required papers to the Collector under the said rule. Learned counsel for the opposite parties has drawn my attention to the judgment of this Court in Bhagirath V. The Collector, Nagaur (l) in which it has been held by the learned Judge that rule 54 (2) is not a mandatory rule. I am in respectful agreement with the observation of the) learned Judge in that case and in view of this finding, noncompliance of R. 54 (2) would not affect the result of co-option. Mr. Lodha has also contended that the names of Janki and Moolki were not published by the Collector under the provisions of sub-rule (5) of rule 54, and, therefore, Sarpanch was within his competence to hold another meeting on 15th January, 1961, to co-opt other person than those declared by Shri Tejsingh on 6th January, 1961. Publication of the names of co-opted members in the official Gazette by the Collector is not essential to give them the status of the full fledged co-opted members of the Panchayat. Non-compliance of the provision of rule 54 (5) which is not a mandatory provision of that law would not, in any manner, vitiate the co-option proceedings. Compliance with the provisions of sub-rules (2) and (5) of rule 54 of the Election Rules can be made at any time after the result of co-option is declared by the Sarpanch or the presiding person and the names are sent to the Collector. The person who has been declared duly co-opted to the Panchayat under rule 53 (6) becomes the member of that Panchayat from the time he has been so declared, and if he is to be removed from the Panchayat it can be done only through the procedure prescribed by rule 78. In the absence of any election petition filed against Smt. Janki and Smt. Moolki and a judgment obtained from any competent authority declaring their co-option to the Panchayat as illegal, it was not open to the Sarpanch to call and hold a meeting on 15th January, 1961, to once again co-opt other members in utter disregard of the declaration of the result of the co-option proceedings taken on 6th January, 1961. If the Sarpanch had any grievance against the co-option proceedings, of Smt. Janki and Smt. Moolki taken on 6th January, 1961, it was open for him to have challenged these proceedings by preferring an election petition under rule 78 of the Election rules. In the light of the above observations, the writ petition of Smt. Anchi and Smt. Sirdari is dismissed with costs. . ;