- (1.) THIS is an appeal under sec. 116-A of the Representation of the People Act, 1951 against the judgment of the Election Tribunal, Jaipur, dated the 28th of February, 1958.
(2.) THE facts giving rise to it are that in the last general elections for the Rajasthan Legislative Assembly, which took place in early part of the year 1957, Dausa was a double-member constituency. One seat was reserved for a member of the Scheduled tribe and the other was a general seat. For the reserved seat, there were 3 candidates, namely, Shri Gajja, Shri Ram Sahai and Shri Nathya, of them, Shri Gajja secured the highest number of votes and he was declared elected by the returning officer from the said constituency on 9th March, 1957. Ram Sahai, who secured the next highest number of votes but who was defeated by Shri Gajja, filed an election petition against Shri Gajja. He also impleaded as the second respondent Shri Ramdhan who was declared elected for the general seat and who had defeated his 3 rival candidates Shri Ramkaran, Shri Bhag-wan Sahai and Naihnyg. It was alleged by Shri Ram Sahai that respondent No. 1 Shri Gajja was a Patel of village Sikrai, that he was thus holding an office of profit under the Government on the date of his nomination paper, that he was disqualified for membership of the legislative assembly under Art. 191 of the Constitution of India and that his nomination paper was wrongly accepted. It was further alleged that respondent No. 1 had joined hands with respondent No. 2 and that both of them had jointly committed certain corrupt practices which were detailed in the application. Both the respondents contested the election petition and thereupon 2 issues were framed by the Election Tribunal. After recording evidence of both the parties, the Tribunal decided all the issues against the petitioner and hence he has filed this appeal. In the memorandum of appeal filed by the appellant in this Court, he had challenged the correctness of the finding of the Tribunal on both the issues, but at the time of arguments learned counsel for the appellant has abandoned his objection regarding the decision on issue No 2, whereby the appellant was called upon to prove the corrupt practices alleged by him in para 4 of the election petition. He has confined his arguments only to issue No. 1. which was framed in the following language: - "whether Shri Gajja respondent was a Patel of village Sikrai and held an office of profit under the Government and was his nomination paper improperly accepted?" The finding of learned Tribunal on the above issue is that "the Government had power of appointment of Patel, that a Patel was entitled to remuneration for the work done by him and therefore a Patel was holder of office of profit under the Government". It was further found by the Tribunal that respondent No. 1 Shri Gajja had worked as Patel upto Smt. 2011, but at the same time, there was no order regarding his appointment as Patel and his name did not appear in any of the registers in which the names of other Patels for Sikrai or other villages were recorded. The Tribunal has observed that "it appears that Gajja who was acting on his father's behalf during his life-time when he had gone blind continued to work as Patel without any appointment order, and since he was not a duly appointed Patel it was not necessary for him to give a resignation, nor there was any rule that a Patel could not give up his office unless he submitted a regular resignation and it was accepted. " It was further found by the Tribunal that Gajja refused to work as Patel after Smt. 2,012 and he did not work as such in Smt. 2,013. In short,the Tribunal came to the conclusion that since no order for appointment of Gajja as a Patel was passed by the competent authority and since he had relinquished that job in Smt. 2012, he was not holding any office at the time when his nomination paper was filed and hence he did not suffer from any disqualification under the Constitution of India, Learned counsel for the appellant has urged that although his client could not lay his hands on the order appointing respondent Gajja as Patel for Sikrai, it was clear from Gajja's own statement that he was working as Patel for village Sikrai upto 26th June, 1956. He has referred to Exs. P. 1 to P. 14 and shown that Ex. P. 7 which is a receipt evidencing payment of land revenue dated 26. 6. 56 bears the signatures of Shri Gajja as a Patel for Sikrai, that Gajja has admitted his signatures on this document and hence there can be no doubt about the fact that was holding office of a Patel by that date. It is further urged that according to the provisions of Exception 1 to sec. 91 of the Evidence Act, this Court should presume that Gajja was duly appointed as a Patel for village Sikrai by the Government even though his appointment order is not traceable. It is next contended that Gajja has not been able to prove if he had tendered any resignation from his office between 26. 6. 56 and the date of his nomination paper (26. 1. 57), that there was no evidence in writing to show that he was removed or discharged from the office by the said date and therefore, the Election Tribunal ought to have held that he was continuing to hold office of profit under the Government on the date of his nomination paper and his nomination paper was improperly accepted. It has been prayed that the decision of the Tribunal should be set aside and the election of respondent No. 1 should be declared void. Learned counsel for the respondent has urged on the other hand that the learned Tribunal has committed an error in holding that a Patel was an office of profit under the Government. It is contended by him that although Patels used to collect land revenue from the tenants on behalf of the Government and although they used to get 6 pies in the rupee on the total amount of their collections, they were permitted to charge this amount from the tenants over and above the land revenue payable by the the tenants and therefore, this was in the nature of out-of-pocket expenses for the Patels and hence a Patel was not an office of profit. To this extent, he has challenged the correctness of the decision of the Tribunal. He has however supported the decision of the Tribunal to the extent that even if it be held that a Patel was an office of profit under the Government, respondent No. 1 was never duly appointed to that office and he was certainly not holding it at the time when his nomination paper was filed since he had given up that job after June, 1956. We have given due consideration to the arguments advanced by learned counsel for both the parties. In order to decide issue No. 1, it may be split up into 2 parts. In other words, the questions for determination before this Court are (1) whether the job of a Patel of village Sikrai was an office of profit under the Government, and (2) whether Gajja was duly appointed to the said office and whether he was holding the same at the time when his nomination paper was filed. Regarding the first point, it may be pointed out that in the former State of Sawai Jaipur, the Land Records Manual of 1938 was sanctioned by Ijlas Mahakma Khas vide resolution No. 14 dated the 26th November, 1937. Section 154 thereof laid down that Office Kanungo would keep in his possession and maintain a bound register of Patels according to Form No. 16 prescribed in the said Manual. It also provided that one leaf would be allotted to each Patel and entries relating to that Patel would be made therein from time to time. It also enjoined upon the Kanungos that in the column relating to remarks entries would be made regarding the status of the Patel, for instance, his debts or his credit or conduct, that this register would be kept for several years and when the said register would be full, another register would be opened. The specimen of Form No. 16 referred therein, is printed on page 161 of the said Manual. It provides 17 columns. Column No. 1 is meant for putting the serial numbers. Col. No. 2 provides for the name of the village for which the Patel is appointed. Col 3. relates to the particular Patti of the village for which the Patel is appointed. Col. No. 4 is meant for the name, parentage, caste, residence, age, date of appointment and the share of Patelai. Col No. 5 to 9 are not important for the purpose of this case. Col. No. 10 is meant for entering the amount of land revenue, which the Patel was required to realise during the year. Col. No. 11 is provided for the date of appointment and the reference of the order by which the Patel is appointed. Col. Nos. 12, 13 and 14 are provided for the punishment, if any, given to the Patel at a particular period of time. Col. No. 12 is meant for mentioning details of punishment, Col. No. 13 for the number of the year and Col. No. 14 for the amount of fine. Col. Nos. 15 and 16 are meant for mentioning the date of death or the date of removal or dismissal of the Patel. Col No. 17 is meant for general remarks. It would thus appear that although the said Manual did not mention as to who was the appointing authority for the appointment of Patels and although it also did not provide for the qualifications of the Patel, it is quite clear from the perusal of sec. 154 read with colums provided in Register No. 16 of Patels that the Patels were appointed by some authority of the State. They were entrusted with the duty of realising land revenue for the State and depositing the same and they were also liable to discipline including punishment, removal and dismissal. Sec. 55 of the same Manual provides for maintaining a register which was called Shyaha Register and in that register, entries were to be made for the realisation of land revenue made from day to day. It is clear from what has been stated above that ever since the said Manual came into force, office of a Patel was an office under the Government of Jaipur State. The said Manual is no doubt silent about the exact remuneration which was allowed to Patels in lieu of the services which they were required to render to the State. But on the question of remuneration, P. W. 38 Ramnath Patwari has stated that Patels used to get 6 pies per rupee on the amount of land revenue, which was collected by them and that they realised it directly from the tenants over and above the land revenue. Respondent Gajja has himself admitted that he was receiving 'hak Patelai' or 'chhut Patelai'. His witness R. W. I Agam Singh has also stated that Patels used to get 'hak Patelai'. It is, therefore, certain that Patels did use to get remuneration for their services to the State. Learned counsel for the respondent has contended that this remuneration was in the nature of 'out-of-pocket' expenses, but in our opinion, this argument is not correct. The amount which was allowed to Patels was fixed to remunerate them for their services, having regard to the standard of remuneration allowed to other public servants at the time it was fixed. Instead of giving a fixed amount of salary, the Government seems to have thought it fit to fix a certain percentage over the actual realisation of land revenue, so that the land revenue may not be allowed to fall in arrears by those who were entrusted with the duty of collecting it. We are, therefore, of opinion that the office of a Patel was an office of profit under the Government, at the time the said Manual was in force. We next find that the Jaipur Land Revenue Act No. 36 of 1947 came into force on the 24th of September, 1947. Section 33 of the said Act related to appointment of Patels and it ran as follows: - "33 (1) When the office of a Patel in any village or part of a village becomes vacant, the nazim shall appoint a successor, (2) If at any time, the deputy commissioner decides that one or more additional patels should be appointed, he may appoint such additional patel or patels. (3) Nothing in this section shall be held to affect the right of a State-grantee holding an entire village to appoint a patel or patels in such village. " It is quite clear from the perusal of the above section that after the 24th of September, 1947, there could be no doubt left about the fact that the office of a Patel (other than the Patels appointed by State grantees) was an office under the Government of Jaipur. Sec. 33 (1) itself refers to "the office of a Patel. " It also provides that a Patel was to be appointed by the Nazim, who in bis turn was appointed by the Government under sec. 21 of the said Act. We may next point out sec. 35 of the said Act, which runs as follows: - "35. The qualifications, emoluments, conditions of service, recruitment, discipline and duties of qanungos. patwaris, patels and lambardars shall be determined and governed by rules made by Government In that behalf," A perusal of the above section leaves no doubt that the Government had power to make rules for providing the qualifications, emoluments, conditions of service, recruitment, discipline and duties of Patels. The rules, if any, made by the Government of Jaipur under the said section have not been placed before us by either party, but the said section leaves no doubt about the fact that the office of a Patel did carry emoluments, that a Patel was a Government servant and he was amenable to discipline just like Kanun-gos, Patwaris and Lambardars. The Jaipur Land Revenue Act of 1947 remained in force till it was repealed by the Rajasthan Land Revenue Act No. 15 of 1956, which came into force on 1st June, 1956. Section 37 of this Act provides for appointment of lambardars by Sub-divisional Officer for each village or group of villages subject to any rules, which may be made under the Act. Sec. 38 provides for matters to be taken into consideration in making appointment under sec. 37 Sec. 39 provides for remuneration which is to be paid to a lambardar according to rules made under the Act. Sec. 40 deals with the duties of lambardars. Then, sec. 41 relates to the appointment of other village servants. Sec. 42 lays down as to how the vacancies of village servants should be filled up. Sec. 43 provides for maintaining a register of village servants. Sec. 44 provides for the remuneration to be paid to the village servants. Sec. 47 provides as to how village servants are to be appointed. Sec. 48 relates to their qualifications, and finally, sec. 49 deals with punishment, suspension and removal of village servants and lambardars. A perusal of these sections leaves absolutely no doubt about the fact that lambardars and village servants appointed under the Act are Government servants holding office of profit under the Government of Rajasthan. This becomes further clear from the perusal of sec. 262 of the said Act which provides that every lambardar or village watchman appointed under Chapter 3 shall be deemed to be public servant within sec. 21 of the Indian Penal Code. It is true that there is no provision in the Rajasthan Land Revenue Act about the appointment of Patels, but the office of a lambardar under this Act corresponds to the office of a Patel under the Jaipur Land Revenue Act and, therefore, by virtue of sec. 27 of the Rajasthan General Clauses Act, 1955, the appointment of Patels, if any, made under the Jaipur Land Revenue Act continued to be in force under the new Act. We have, therefore, no doubt about the fact that the office of a Patel or a lambardar was an office of profit under the Government of Rajasthan on the date on which Gajja's nomination paper was filed. We find no force in the argument raised by learned counsel for the respondent in this behalf, and in our opinion, the decision of the Tribunal on this point is quite correct. Now coming to the second point, we have to see if Gajja was duly appointed to the office of Patel and whether he was holding that office on the date when his nomination paper was filed. This point will have to be dealt with from two aspects, i. e. factual and legal. It would be proper to deal with factual aspect of the matter first. It has already been mentioned above that learned counsel for the appellant himself has very frankly conceded that his client has not been able to find out any order of Gajja's appointment to the office of Patel. At the same time, it has been admitted even by Gajja respondent that he did work as a Patel from the life-time of his father till the 26th of June, 1956. According to him, he did all this work informally, but he was never appointed as a Patel. He has stated that he never applied to the Sub-divisional Officer or to any other officer to be appointed as a Patel nor was any order of appointment ever issued about him. His father Parshadi was a Patel of village Sikrai. Pershadi died 4 or 5 years before the date of his (Gajja's) statement, which was recorded on 25th November, 1957. He proceeds to say that his father had gone blind and therefore he used to work for him till his death. He also continued to work in his father's place after his death. He has admitted his signatures on hansil challans and Exs. P. 1 to P. 14. He says that about 2 years before the last elections he stopped working as a Patel and he was not doing the Patel's job when his nomination paper was filed. His witness Shri Agam Singh R. W. 1, who was Tehsildar of Sikrai, has stated that Patels are appointed by Sub-Divisional Officer, that he had issued the certificate Ex. D. 3 to the effect that Gajja's name was not entered in the register of Patels and that he had verified this fact from the register of Patels of Tehsil Sikarai. He was cross-examined at length, but he has remained unshaken. The appellant's own witness, P. VV. 38 Ramnath Patwari has admitted in cross-examination that Patels were appointed by Sub-Divisional Officer and that he did not see any order appointing respondent No. 1 Gajja as a Patel. He has further admitted that Gajja's father had become blind and he was working in his place. In fact, Gajja was working as Patel before this witness took charge of Patwar of that circle and so he had to admit that he could not say how Gajja was working as a Patel. He has also admitted that the Patels were given remuneration of 6 pies per rupee on the amount of land revenue realised by them, but from Smt. 2001 onwards this remuneration was stopped. He has further admitted that after Smt. 2012 Gajja definitely refused to work as a Patel, that he certainly did not work as a Patel in Smt. 2013 and he did not receive any Chhoot Patelai after Smt. 201. 1. Similarly,, another witness of the appellant Shri Jagdish Narain, P. W. 37, who was office Kanungo of Tehsil Sikrai, has stated that Patels were appointed by Sub-Divisional Officer, that the order of the Sub-Divisional officer appointing a Patel used to be sent to the Tehsildar and then entries were to be made in the register of Patels. The witness did not find the name of Gajja as having been entered in the said register and, therefore, according to him, he was not appointed as a Patel, otherwise his name would have been entered in the register. The register of Patels, which was produced before the Tribunal, has also been placed before this Court. We find that in the 4th column of that register, the name of Parshadi, i. e. father of Gajja respondent has been mentioned, but the name of the respondent himself is significantly absent. There is a note in the remarks column by Ratnnath Patwari dated 5. 3. 55 that Parshadi was dead. A perusal of this register shows that there are certain entries about Parshadi till 1938, but thereafter, no body cared to check up the register and it was only in March, 1955 that the Patwari made a note about Parshadi's death although he died several years ago. This register also mentions 3 more patels for Sikarai, namely Bholu, Ram Sahai and Gangadhar, but there is no mention about Gajja. Similarly, in the second register of Patels, which has been kept in F. No. 8 under the Land Records Manual of Jaipur of 1954, we find that at page 124 of the register, there are entries about Bholu, Gangadhar and Jagram Patels of village Sikrai, but there is no mention about Gajja Patel. Thus, the factual position was that although Gajja respondent worked as Patel from the life time of his father up to 26. 6. 56, there was no formal order about his appointment as Patel. He started working as Patel during the life-time of his father, because his father was blind and he was asked or permitted to perform the duties of a Patel in place of his father. He continued to work in this manner informally till 26. 6. 56. His name was never entered in the registers which were maintained for the appointment, punishment and dismissal of Patels. He refused to work after 26. 6. 56 and got no remuneration since Smt. 2011.
(3.) WE have now to examine the legal aspect of this matter. Learned Counsel for the appellant has urged that since Gajja actually worked as a Patel for a number of years it must be presumed that he was duly appointed by competent authority. It is contended that the first register should not be relied upon, because although it is a bound register, some of the leaves have become loose and it is likely that it may have been tempered with. WE have seen the register over selves. It is a bound register and it is true that although some! of the leaves have become loose, there is no reason to suspect that it may have been tempered with. The leaves which mention the names of Parshadi, father of respondent Gajja, Bholu, Gangadhar and Ram Sahai have not yet become loose and there is no reason to presume that false entries might have been made in this register and that the name of Gajja might have been removed. Similarly, the second register is serially numbered and we see no reason to entertain any suspicion about the entries made therein. Learned counsel for the appellant has argued that even though Gajja's name was not mentioned in these registers and that even though the order about his appointment was not forthcoming, this Court must presume that he was duly appointed as a Patel, otherwise he could not have been allowed to work as such for about 9 years. In support of his contention, learned counsel has referred to sec. 91 (1) of the Indian Evidence Act. It may be pointed out that sec. 91 of the Indian Evidence Act provides for the exclusion of oral testimony by documentary evidence in certain cases. It lays down that if the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document,no evidence shall be given in proof of the terms of such contract,grant or other disposition of property,or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Act. Under exception 1, it has been provided that if a public officer is required by law to be appointed in writing and if it is shown that any particular person has acted as such officer, the writing by which he was appointed need not be proved. According to this exception, it was enough for the appellant to prove that respondent No. 1 had acted as a patel and it was not absolutely essential for him to produce the order of his appointment, but this exception only raises a presumption in favour of the stand taken by the appellant and it is not a piece of conclusive evidence about the valid appointment of respondent Gajja. In other words, the presumption is rebuttable and when Gajja has shown by producing Government records, that his name was never entered as a Patel in the registers in which his name ought to have been entered if he was appointed at any time, then the said presumption is certainly rebutted. If Gajja was really appointed as a Patel by some formal order of the appointing authority, then his name ought to have been mentioned in the first register. Similarly, his name would have been mentioned in the second register if he was formally appointed at any time. The Patwari, Kanungo and Tehsildar of village Sikari, referred above, have all appeared in evidence and they have also supported the respondent's version to the effect that he was probably never appointed formally as a Patel and he continued to work in his father's place in an informal manner. This kind of position may appear strange at the present time, but it seems there was nothing abnormal about it at the time when the respondent's father became blind or when he expired. In the face of the evidence of the three witnesses, referred above, and the absence of entries in the 2 registers, we find no justification to reverse the findings of the Tribunal to the effect that Gajja respondent was not duly appointed as a Patel of village Sikrai. Learned counsel for the appellant has next urged that even if respondent Gajja was not formally appointed as a Patel, he was actually holding the office of Patel till 26th June, 1956 and since there was no formal order about accepting his resignation of his removal or dismissal, it should be presumed that he continued to hold that office till 29th January, 1957, when his nomination paper was filed. We have given our earnest consideration to this argument and in our opinion, it is not tenable. It may be pointed out that after the month of June, 1956, there was another period for collection of land revenue in November, 1956 and we find that there is absolutely no evidence to show that respondent Gajja worked as a Patel during that period. He has stated on oath that he had refused to work as Patel after 26th June, 1956 and this statement is corroborated by the appellant's own witness P. W. 38 Ramnath Patwari. It has been urged by appellant's learned counsel that the mere refusal to work as Patel on the part of respondent Gajja was not enough. He ought to have tendered his resignation and he could cease to hold the office of Patel only when that resignation was accepted. In support of his argument, learned counsel has referred to the decision of the Election Tribunal Berhampur in Ram Sahai vs. Sumba Sadar (1 ). In that case the successful candidate whose election was challenged was a teacher in a Government High School at Kujundri. He was thus holding an office of profit under the Government. On 19th October, 1951, his resignation was submitted to the District Welfare Officer but he was informed that he could not be relieved unless a substitute was available to relieve him. On 6th November 1951, he applied for one month's medical leave. On 7th November, 1951. he submitted another application saying that he ceased himself from his duties from that day and that his resignation, which was already tendered, may be accepted. His resignation was, however, not accepted till 10th November, 1951, when the nomination paper was filed. In those circumstances, it was held that he did not cease to hold his office by merely tendering his resignation or ceasing to work. It is clear that the facts of the above case were very different and the person concerned was admittedly a duly appointed Government servant who was bound by certain rules. In the present case, however, we find that respondent Gajja was never appointed formally by the proper appointing authority or by any authority whatsoever. He continued to work informally because nobody took notice of the irregularity. Under the circumstances, he also made an oral resignation and that position was accepted as correct by his superiors, because he was never called upon to render the duties of Patel after 26th June, 1956 and he was not paid his remuneration from Smt. 2011 onwards. Respondent Gajja was not bound by any rules whereby he might have been required to put in his resignation in a certain manner. In the special circumstances of this case, it cannot be said that he was continuing to hold the office of Patel no the date when his nomination paper was filed. We, therefore, see no reason to interfere with the decision of the Tribunal. The appeal is dismissed with costs,which are fixed as Rs. 200/-- (two hundred only ). .;