# RAJA BAHADUR K. C. DEO BHANJ v. RAGHUNATH MISRA AND OTHERS

- **Citation:** [1959] Supp. 1 S.C.R. 952
- **Court:** Supreme Court of India
- **Decided:** 1958-04-15
- **Case number:** Civil Appeal No. 480 of 1958
- **Bench:** Syed Jafer Imam, S. K. DAs, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raja-bahadur-k-c-deo-bhanj-v-raghunath-misra-and-others-1684
- **Pages:** 17

## Headnote

Electio11-Corrupt Practice-Perso11 in service of Government,
obtaining assistance of-Sarpanch of Grama Panchayat in OrissaWhether such a pel'Son-lf Sarpanch is a revenue officer or a village
accountant-Repreuntatio11 of the People Act, r95r (43 of r95r),
s. r23(7)(j)-Orissa Grama Panchayats Act, r948 (Orissa XV of
r948).
The appellant was declared elected to the Orissa Legislative
Assembly and the first respondent filed an election petition
challenging the election, inter alia. on the ground that the appelr
!ant had committed the corrupt practice nnder s. r23(7)(f) Representation of the People Act, 1951, by obtaining the assistance
of Sarpanches of certain Grama Panchayats for the furtherance
of the prospects of his election. The petition was dismissed by
the Election Tribunal but on appeal, was allowed by the High
Court and the election was set aside. The High Court held that
a Sarpanch was a person in the service of the Government within the meaning of s. r23(7)(f) of the Act.
I
Held, that a Sarpanch of Grama Panchayat in Orissa was not
-4il
one of the persons contemplated bys. r23(7)(f) and consequently
J
•
the appellant was not guiliy of any corrupt practice in obtaining
assistance of Sarpanches. Two conditions must co-exist before
s. r23(7)(f) could apply to a Sarpanch: (i) that he was in the
service of the Government, and (ii) that he fell within the class
(1) s.o.R.
SUPREME COURT REPORTS
953
specified in cl. (f). There was a distinction between "serving
rg58
under the Government" and "in the service of the Government"; while one may serve under a Government one may not
Raja Bahadur
necessarily be in the service of the Government; under th~ K. c. Deo Bhan;
latter expression one not only served under the Government but
v.
was in the service of the Government and this imported the Raghunath Misri•
relationship of master and servant.
None of the provisions of
and Others
the Orissa Grama Panchayats Act, 1948, suggested that as
between the State Government and the Grama Panchayat and
its Sarpanch any such relationship existed. The mere power of
control and supervision of Government over a Grama Panchayat
exerfi;ising administrative functions or performing duties of
·governmental nature could not.make the GramaPanchayat or its
Sarpanch a person in the service of the Government. The
Sarpanch was the executive head of the Grama Panchayat: he
was neither appointed nor paid by the Government; he could
only be removed by Government on grounds of negligence,
inefficiency or misbehaviour. He was not under the control of
the Government while discharging his functions and could not
be said to be in service of the Government.
The second condition also did not exist as a Sarpauch was neither a revenue
officer nor a village accountant and as such was not one of the
class -of officers mentioned in cl. (f) of s. 123(7).

## Text

952
SUPREME COURT REPORTS [1959] Supp.
1958
it. Merely because a son uses a pistol and causes the
death of another at the instance of his father is no
•• :~=~:her mitigating circumstance which the courts would take
v.
into consideration.
The State of u. P.
In our opinion the courts below have rightly imposed the sentence of death on Mizaji. Other appelKapur 1 ·
lants being equally guilty under s. 149, Indian Penal
Code, have been rightly sentenced to imprisonment
for life.
December 18.
The appeals must therefore be dismissed.
Appeals dismissed.
RAJA BAHADUR K. C. DEO BHANJ
v.
RAGHUNATH MISRA AND OTHERS
(SYED JAFER IMAM, S. K. DAs and J. L. KAPUR, J,J.)
Electio11-Corrupt Practice-Perso11 in service of Government,
obtaining assistance of-Sarpanch of Grama Panchayat in OrissaWhether such a pel'Son-lf Sarpanch is a revenue officer or a village
accountant-Repreuntatio11 of the People Act, r95r (43 of r95r),
s. r23(7)(j)-Orissa Grama Panchayats Act, r948 (Orissa XV of
r948).
The appellant was declared elected to the Orissa Legislative
Assembly and the first respondent filed an election petition
challenging the election, inter alia. on the ground that the appelr
!ant had committed the corrupt practice nnder s. r23(7)(f) Representation of the People Act, 1951, by obtaining the assistance
of Sarpanches of certain Grama Panchayats for the furtherance
of the prospects of his election. The petition was dismissed by
the Election Tribunal but on appeal, was allowed by the High
Court and the election was set aside. The High Court held that
a Sarpanch was a person in the service of the Government within the meaning of s. r23(7)(f) of the Act.
I
Held, that a Sarpanch of Grama Panchayat in Orissa was not
-4il
one of the persons contemplated bys. r23(7)(f) and consequently
J
•
the appellant was not guiliy of any corrupt practice in obtaining
assistance of Sarpanches. Two conditions must co-exist before
s. r23(7)(f) could apply to a Sarpanch: (i) that he was in the
service of the Government, and (ii) that he fell within the class
(1) s.o.R.
SUPREME COURT REPORTS
953
specified in cl. (f). There was a distinction between "serving
rg58
under the Government" and "in the service of the Government"; while one may serve under a Government one may not
Raja Bahadur
necessarily be in the service of the Government; under th~ K. c. Deo Bhan;
latter expression one not only served under the Government but
v.
was in the service of the Government and this imported the Raghunath Misri•
relationship of master and servant.
None of the provisions of
and Others
the Orissa Grama Panchayats Act, 1948, suggested that as
between the State Government and the Grama Panchayat and
its Sarpanch any such relationship existed. The mere power of
control and supervision of Government over a Grama Panchayat
exerfi;ising administrative functions or performing duties of
·governmental nature could not.make the GramaPanchayat or its
Sarpanch a person in the service of the Government. The
Sarpanch was the executive head of the Grama Panchayat: he
was neither appointed nor paid by the Government; he could
only be removed by Government on grounds of negligence,
inefficiency or misbehaviour. He was not under the control of
the Government while discharging his functions and could not
be said to be in service of the Government.
The second condition also did not exist as a Sarpauch was neither a revenue
officer nor a village accountant and as such was not one of the
class -of officers mentioned in cl. (f) of s. 123(7).
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
480 of 1958.
Appeal by special leave from the judgment a.nd
order dated April 15, 1958, of the Orissa High Court
in Misc. Appeal No. 194 of 1957, a.rising out of the
judgment aud order dated October 26, 1957, ·of the
Election Tribunal, Puri, in Election Case No. 1/67 of
1957.
Veda Vyasa and A. V. Viswanatha Sastri, R. Patnaik
and Ratnaparkhi, A. G., for the appellant.
H. Mahapatra and P. K. Chatterjee for G. 0. Mathur,
for respondent No. 1.
1958. December 18. The Judgment of the Court
was delivered by
IMAM, J.-The appellant and the respondent No. 1
were, amongst others, candidates for election to the
Orissa Legislative Assembly from the Daspalla .doublemember constituency in which a seat was reserved
for a scheduled caste candidate. We are not concerned with the election of the scheduled caste candidate.
120
(lfWll f.
954
SUPREME COURT REPORTS [1959] Supp.
For the general seat the election was contested by the
appellant, respondent No. l and respondent No. 3.
Raj• Bahad"' The appellant obtained 17, 700 votes, respondent
K. C. Deo Bhonj
v.
No. l 15,568 votes and respondent No. 3 3,589 votes.
R•ghunath .'</is•• The election was held on February 27, 1957, and the
and Othm
appellant was declared elected on March 5, 1957.
Respondent No. l filed an election petition questionImam j.
ing, on various groupds, the election of the appellant ..
The Election Tribunal dismissed the petition holding
that no grounds had been established to invalidate
the. election. Respondent No. l
appealed to the
High Court of Orissa against the order of the Election
Tribunal.
One of the grounds, amongst the many grounds,
taken by Respondent No. l to invalidate the election
of the appellant was that the nominati~n of respondent No. 3 was improperly accepted as he was disqualified from contesting the election being a Sarbarakar of the 10 villages in the district of Nayagarh
mentioned in the schedule to the petition. The High
Court held that the office of Sarbarakar was an office
of profit under the State Government of Orissa. Respondent No. 3 was accordingly disqualified from being
a member of the Assembly. It, however, held that
the acceptance of the nomination of respondent No. 3
had not materially affected the election of the returned candidate under cl. (d) of sub-s. (l) of s. 100 of the
Representation of the People Act, 1951, hereinafter
referred to as the Act.
Three grounds were urged before the High Court in
support of the contention that the appellant had been
guilty of corrupt practice. One was that of bribery;
the second was that the appellant and his agents had
published a pamphlet, Exbt. 8, containing statements
which were false and which he knew or believed to
be false in relation to the personal character and conduct of respondent No. l and in relation to his candidature; and the third was the obtaining and· procuring by respondent No. l of assistance for the furtherance of the prospects of his election from Sarpanches
. of certain Grama Panchayats. With regard to the
first two grounds the High Court held that the same
i
'
(I) S.C.R. SUPREME COURT REPORTS
955
had not been established. With reference to the third
ground the High Court was of the opinion that a
Raja BaAadM•
Sarpanch of the Grama Panchayat, though not a K. c. D•o 811,,.,;
Government servant appointed by the Government,
v.
was none the less a person in the service of the R~ghunatls Misra
Government as he performed many of the governand 0111 ...
mental duties and was also removable by the Government and such a person came within the provisions
of s. 123(7)(f) of the Act.
A Sarpanch exercised under
t.he Orissa Grama Panchayats Act, 1948, hereinafter
referred to as the Orissa Act, mostly governmental
functions like collection of taxes, maintenance of
public accounts, etc. It thought that if such a person
was not brought under s. l23(7)(f) there would be " a
lot of undue influence exercised on the voters by these
persons who in the village exercised a lot of influence
considering the nature of their powers and the ideas
of the village people ". The High Court accordingly
allowed the appeal and set aside the appellant's election but was of the opinion that although its finding
resulted in the appellant being disqualified for membership of Parliament and the Legislature of every
State for six years under s. 140 of the Act, this was a fit
case for the removal of the disqualification by the
Election Commission under s. 144 of the Act.
The appellant applied to the High Court for a
certificate that this was a fit case for appeal to this
Court. The certificate was granted, but one of the
learned Judges was in some doubt whether this was a
case in which the provisions of Art. 133(l)(c) of the
Constitution applied. On behalf of respondent No. I
an objection had been taken that Art. 133(l)(c) of the
Constitution did not apply arid the High Court could
not have certified that this was a fit case for appeal
to this Court. It seems to us unueces;;ary to decide
whether in a case of this kind the provisions of
Art. 133(l)(c) applied because, in our opinion, even if
they did not apply and the High Court could not have
issued a certificate, this was just the kind of case
where we would have granted special leave to appeal
under Art. 136 of the Constitution because the appeal
raised a point of law of considerable public importance.
Imam ].
956
SUPREME COURT REPORTS [1959] Supp.
1958
In order to remove all doubts in the matter, we
.
h
grant the appellant special leave to appeal against the
Ra7• li• •dur d ' '
f h H' h C
f 0 ·
d
d t
K. c. Deo Bhanj
ec1s10n o t e
1g
ourt o
nssa an
procee
o
'"
deal with the appeal on that basis.
Ragh•••th Misra
The Act was amended in 1956. Before the amcndand Others
mcnt the rdevant portion of s. 123 for the purpose of
Imam].
this appeal was contained in sub-s. (8) which was as
follows:
" (8) The obtaining or procuring or abetting or
attempting to obtain or procure by a candidate or his
agent or, by any other person with the connivance of
a candidate or his agent, any assistance for the
furtherance of the prospects of the candidate's election
from any person serving under the Government of
India or the Government of any State other than the
giving of vote by such person.
Explanation-For the purposes of this clause-
(a) a person serving under the Government of
India shall not include any person who has been
declared by the Central Government to be a person to
whom the provisions of this clause shall not apply;
(b) a person serving under the Government of
any State shall include a patwari, chaukidar, dafedar,
zaildar, shanbagh, karnam, talati, talari, patil, village
munsif, village headman or any other village officer,
by w batever name he is called, employed in that State,
whether the office he holds is a whole-time office or
not, but shall not include any person (other than any
such village officer as aforesaid) who has been declared by the State Government to be a person to whom
the provisions of this clause shall not apply."
After the amendment the relevant portion of 8. 123
is in sub-s. (7) which reads as follows:-
" (7) The obtaining or procuring or abetting or
attempting to obtain or procure ·by a candidate or his
agent or, by any other person, any assistance {other
than giving of vote) for the furtherance of the prospects of that candidate's election, from any pe.rson in
the service of the Government and belonging to any
of the following classes, namely :-
(a) gazetted officers;
(b) stipendiary judges and magistrates ;
I
'
i
\.
•.
(1) S.C.R.
SUPREME COURT REPORTS
957
(c) members of the armed forces of the Union;
(d) members of the police forces ;
Raj&1 Bahadur
(e) excise officers;
1<. c. Deo Bhanj
(f) revenue officers including villag@ accountants,
v.
such as, patwaris, lekhpals, talatis, karnams and the Raghunath Misra
like but excluding other village officers ; and
and Othm
(g) such other class of persons in the service of
the Government as may be prescribed.
Explanation-(!) In this section the expression
"agent " includes an election agent, a polling agent
and any person who is held to have acted as an agent
in connection with the election with the consent of the
candidate.
(2) For the purposes of clause (7), a person shall
be deemed to assist in the furtherance of the prospects
of a. candidate's election if he acts as an election agent,
or polling agent or a counting agent of that candidate."
There is a material difference between the phraseology
of s. 123(8) before it was amended a.nd s. 123(7) as now
contained in the Act. Under the former provision
there was a prohibition against obtaining any assistance for the furtherance of the prospect of a candidate's election from any person serving under the
Government of India or the Government of a State
other than the giving of a vote by such person. The
Explanation, however, gave authority to the Central
Government to declare auy person serving under it to
be a person to whom these provisions would not apply.
In other words, unless there was such a declaration
these provisions covered every person serving under
the Government of India. Clause (b) of the Explanation further widened the meaning of any person serving under the Government of a State by including the
persons specified therein and any other village officer,
by whatever name he may be called, employed in that
State, but the State Government was authorized to
declare that any such person, other than any such
village officer, to be a person to whom these provisions
did not apply. The language of the provisions of
s. 123(8) covered a wide field and referred to every
person serving under the Government of India or a
Imam].
958
SUPREME COURT REPORTS [1959] Supp.
State unless such person was declared to be one to
whom the provisions would not apply. After the
Raja Hahadu• amendment, however, the provisions of s. 123(7) are
K. C. Deo Bhanj
v.
narrower in scope. These provisions apply to any
R•gh10,ath Mi"a person in the service of the Government belonging to
and Othm
the classes specified in els. (a) to (g) and none else. For
Imam j.
the purpose of this appeal it is cl. (f) which will have
to be conSidcred, as the other clauses cannot in any
case apply.
The principal question for considerat.ion is whether
a Sarpanch of a Grama Panchayat constituted under
the Orissa Act is a person in the service of the
Government of the State of Orissa and belongs to the
class specified in cl. (f) of s. 123(7).
Obviously, two things will have to be established
before the provisions of s. 123(7){f) can apply to a
Satpanch of a Grama Panchayat constituted under the
Orissa Act: (I) That such a person is in the service of
the Government and (2) that he comes within the class
specified in cl. (f). It would not be enough to establish only oue of these conditions. It is necessary,
therefore, to decide, in the first instance, whether a
Sarpanch of a Grama Panchayat under the Orissa Act
is a person in the service of the Government of the
State of Orissa. For this purpose, it will be necessary
to consider whether any of the provisions of the Orissa
Act rela.ting to the Grama Panchayat and the duties
to be discharged by the Sarpanch indicate that the
Sarpanch is in t.he service of the Government, because
independent of those provisions there is no material
upon which any such conclusion can be arrived at.
It was urged on behalf of the appellant that under
the Orissa Act a Grama Sasan can be constituted by
notification bv the State Government. The Grama
Sasan is to be a body corporate having perpetual
succession and a common seal with power to acquire
and hold property, to transfer auy property held by it
and to enter into contracts and to do all other things
necessary for the purpose of carrying out the provisions of the Orissa Act and to sue and be sued in its
corporate name. For every Grama Sasan there shall
be a Grama Panchayat and the functions of the
'
. I
.,,,
•
(1) S.C.R. SUPREME COURT REPORTS
95U
Grama Sasan shall be exercised, performed and discharged by the Grama Panchayat. The Executive
power of the Grama Panchayat shall Le exercised by K~at D~:h~~~~ij
the Sarpanch elected under s. 10, who shall act under
v.
the authority of the said Grama Panchayat.. The llaghimatli Mi.,a
Grama Sasan shall elect, in the prescribed manner,
and Others
from amongst its members r.rn Executive Committee
which will be known as the Orama Panchayat and
the Grama Panchayat shall elect, in the prescribed
manner, a Sarpanch. The appointment of a Sarpanch,
therefore, was not by the Government. The Sarpanch
was elected by the Grama Panchayat which in turn
was elected by the Grama Sasan and the Grama
Sasan consisted of a village or a group of contiguous
villages and its members were the population residing
in the Grama.
Ai:1 the appointment of the Sarpanch
is not by Government, this would be one of the factors
in holding that the 1-iarpanch was not iu the service of
the Government.
Under s. 8, the Sarpanch has to act
under the authority of the Grama Panchayat. Prima
facie, this would also be a factor to discountenance the
theory that a Sarpanch was in the service of the
Government. Another factor which would militate
against the theory that a Sarpanch was in the service
of the Government was that he received no remuneration from the Government.
The po\ver to remove a
Sarpanch by the State Government is stated in s. 16
but the removal can only be for negligence, inefficiency or misbehaviour. This restricted power of removal was not a conclusive factor on the question
whether a Sarpanch was in the service of the Government. It was accordingly urged that three important
factors to he taken into consideration in deciding whether a person was in the service of the Government,
namely, appointment of the person, such a person to
a.ct under the authority of the Government and one
who received remuneration from Government were
lacking in the case of a Sarpanch. The restricted
power of removal by the Government was not a conclusive factor.
Instances were not lacking in the
Municipal Acts of various States where the State
Government had vested in it the power of removal of
Imam ).
960
SUPREME COlJR'l' REPOR'l'S
(1959] Supp.
a Chairman of the Municipality, but it could not be
Raja Bahadu• said that the members of the Municipality or their
K. c. Deo Bhanj Chairman were in the service of the Government.
v.
On behalf of respondent No. 1 it was urged that the
Raghunath .,,;,,a expression "in service of Government" had a wider
•nd Othm
concept than the expression "serving . under the
Imam J.
Government". Exercise of governmental functions
would amount to being in Government's service.
A
Sarpanch could be equated with a patwari, lekhpal,
talati, karnam, etc., and it was nut necessary to considcr whether he was in. service of Government because
the word " and " before the words " belonging _to any
of the following classes" should be read as "or".
He referred to the various provisions of the Orissa Act
in support of his submission that a Sarpanch must be
rngarded as one in service of Government. Under
s. 10(2) the District Magistrate was to decide the
manner in which the local area of any Grama Sasan
shall be divided into electoral wards and the number
of members to be returned for each of such wards.
Under sub-s. (4) of this section the number of members
of a Grama Panchayat 2hall be fixed by the District
Magistrate. Under sub-s. (6) if in an election tho
requisite number of members of a Grama Panchayat is not elected, the State Government shall
appoint persons to fill up the vacancies and the
Grama Panchayat so constituted, consisting of elected
and appointed members, shall elect a Sarpanch
from amongst its members.
Under sub-s. (8) the
State Government was empowered by notification
for sufficient cause to extend the term of office of
any Grama Panchayat for a period of one year.
Under s. 11 the State Government may by notification direct that general election of members of a.
Grama Panchayat be held at any time before the
expiration of the term of office of such members including its Sarpanch. Under s. 14 the State Government is authorized to decide any dispute or difficulty
arising out of the interpretation of any of the provisions of the Orissa Act or any rule made thereunder
or any difficulty which arises in the working of the
Act.
Under s. 16 the State Government is empowered
(
.
(1) S.C.R.
SUPREME COURT REPORTS
961
to remove a Sarpanch on the ground of negligence,
z95B
inefficiency, or misbehaviour. Under s. J 7 a Sarpanch Raja Bahadur
shn,ll give effect to the decision of the Urama PanchaJ(. c. Deo Bhanj
yat; provided that if in his opinion any such decision
v.
is subversive of peace and order in the locality or Ragh11na11i Misra
results in manifest injustice or unfairness to an indiviand Others
dual or body of individuals or a particular community
or is generally against public interest, he shall refer
the matter to the Sub-divisional Magistrate and
thereafter act according to such directions as he may
receive from such Magistrate. Under sub-s. (2) of this
section, the Sub-divisional Magistrate may, on his
own motion or on the representation by the Sarpanch,
set aside a decision of the Grama Panchayat, if he
finds that the decision is of the nature as stated above.
Under sub-s. (3) of s. 18 the Sub-divisional Magistrate
may nominate any member of the Grama Panchayat
to carry on the duties of the Sarpanch till a new
Sarpanch is elected on the resignation of the former.
Under s. 22 a Grama Panchayat may, if a majority of
its menibers so decide, with the previous approval of
the Government and if the Provincial Government so
direct undertake within its area the control and administration of and be responsible in the matters mentioned in els. (a) to (y). Clause (x) refers to the doing
of anything the expenditure on which is declared by
the Provincial Government or by a District Board
with t.he sanction of the Provincial Government to be
an appropriate charge on the Grama Sasan's funds.
Even in the matter of appointing staff to a Grama
Panchayat., under s. 32 the Grama Panchayat has to
prepare a scheme containing it.s proposals for the employment of whole-time or part-time staff, for their salaries and allowances and shall submit the same to the
prescribed authority who shall have the power to approve or modify or reject the scheme. Section 35 refers
to the liability of the members of the Grama Panchayat
or of any Joint Committee or 'any other Committee
constituted under the Orissa Act and provides for the
institution of snits against them for loss, waste or
misapplication of any property belonging to the
12 [
I
Imam].
'
962
SUPREME COURT REPORTS [1959] Supp.
Grama Pancbayat as the result of direct consequence
of bis neglect or miscouduct while a member of the
Raja Bahadu,. G
p
b
J
C
'
h
K. c. Deo Bhanj
rama
anc ayat,
oint
omm1ttee or ot er Comv.
mittee. Under sub-s. (3) .the Provincial Government
Raghunath Mis.a has the power to institute such a suit on its own initiaand Others
tive. Under s. 36 all members of the Grama Pancba.
Imam J.
yat shall be deemed to be public servants and in the
definition of" legal remuneration " in s. 161 of the
Indian Penal Code, the word " Government" for the
purpose of this section shall be deemed to include a,
Grama Sasan or a Grama Pancbayat. Under s. 44(2)
a Grama Pancbayat with the previous sanction of the
State Government may impose a tax, toll, fee or rate
on matters referred to in els. (a) to (n). Under sub.a. (4)
the District Magistrate is authorized to review or
revise the tax, toll, fee or rate imposed by Grama
Pancbayat. Under sub-s. (5) the District Magistrate
may by an order in writing require the Grama Pancbayat to levy or increase any tax, toll, fee or rft.te
specified in sub-s. (2) subject to the conditions and
restrictions contained therein, if in bis opinion the
income of the Grama Panchayat is or is likely to be
inadequate for the proper discharge of the duties
imposed under s. 21 or undertaken under s. 22. Under
s. 97 the District Magistrate is authorized to exercise
general powers of inspection, supervision and control
over the performance of the administrative duties of
the Grama Panchayat.
Section 98 contains the
general powers of the District Magistrate and s. 99
contains the emergency powers of the District Magistrate in relation to a Grama Panchayat whereby he
may by an order in writing prohibit the execution or
further execution of a resolution or an order passed or
made by it. Under s. 117-A the State Government
may delegate any of its powers, except the power to
make rules, to be exercised or discharged by any
officer subordinate to State Government.
It was
urged on behalf of respondent No. 1 that the above
provisions of the Orissa Act clearly ma.de the Grama.
Pancbaya.t come under the control and supervision of
the State Government and that the duties and functions of the Grama Pancbayat to be performed by its
'
I
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\
'"-(.
(1) S.C.R. SUPREME COURT H.EPORTS
963
Sarpanch were governmental duties. It was further
i958
urged that in considering whether a Barpanch was R .
8 ,
'
h
·
f n
t th
. l
a;a
a,1adur
a person 111 t e servwe o uovernmen
e essent1a
J<. c. Dea Bhanj
elements to be borne in mind were the control and
v.
supervision over him by the State Government and its Raghunatll Misra
power to remove him from his office. Neither the
and Others
absence of appointment by the State Government nor
the non-payment of remuneration by it would be
factors indicating that he was not in the service of the
Government.
In our opinion, there is a distinction between 'scrv-
' ing under the Government' and 'in the service of the
Government', because while one may serve under a
Government, one may not necessarily be in the service
of the Government; under the latter expression one
not only serves under the Government but is in the
service of the Government and it imports the relationship of master and servant. There are, according to
Batt (On the Law of Master and Servant), two essentials to this relationship: (1) The servant must be
under the duty of rendering personal services to the
master or to others in his behalf and (2) the master
must have the right to control the servant's work
either personally or by another servant or agent and,
according to him, "It is this right of control or interference, of being entitled to tell the servant when to
work (within the hours of service) or when not to
work, and what work to do and how to do it (within
the terms of such service), which is the dominant
characteristic in this relation and marks off the servant from an independent contractor, or from one
employed merely to give to his employer the fruits or
results of his labour. In the latter case, the contractor
or performer is not ur.der his employer's control in
doing the work or effecting the service; he has to
shape and manage his work so as to give the result he
has contracted to effect. Consequently, a jobbing
gardener is no more the servant of the person employing him than the doctor employed by a local authority to act as visiting physician to its fever hospital".
None of the provisions of the Orissa Act suggest that
as between the State Government and the Orama
Imam].
964
SUPREME COUH,'1.' REPORTS [1959) l:lupp.
'958
Panchayat and its Sarpanch any such relationship
I , .
JJ 1 a
exists. lt is true that the State Government, the Dis-
'"1"
"'" "'
·
M ·
d h
S b d. . .
l M
. t
t
K. c. D'° flhanj tr1ct
agrntrate an t e
u . 1v1s1one.
ag1s ra e
v.
have been given certain powers of control and superviRaghuuaJh Mim• sion over the Grama Panchayat but those powers of
and Others
control and supervision are in relation to the adminisln1atn}.
trative functions of the Grama Panchayat and the
Sarpanch. The Grama Panchayat is an autonomous
body exercising functions conferred under the statute.
It can hardly be said that the Grama Panchayat in
so functioning is in the service of the Government.
Its administrative functions are akin to the functions
generally performed by Municipalities and District
Boards. It would be a conception hitherto unknown to
suppose that any Municipality or District Board was
in the service of the Go\•ernment merely because it
exercised administrative functions and to some extent
was under the control of the Government. Co-operative
societies generally are Yery much under the control
and supervision by the State Government or one of its
ollicers authorized in that behalf. It would be difficult
to accept the suggestion that because of that a Cooperative society and its members must be regarded
as iu the service of the Government. Even with respect
to companies, progressively, legislation
has been
giving powc1· to the Government to control and
supervise them. Under s. 259 of the Indian Companies
Act, 1956, in certain circumstances, any increase in
the numhcr of its directors must be approved by the
Central Government and shall become void if it is
disapproved.
Under s. 269, in the case of a public
company or a private company which is a subsidiary
of a public company, the appointment of a managing
or whole-time director for the first time after the commencement of this Act in the case of an existing company, and after the expiry of three months from the
date of its incorporation in the case of any other
company, shall not have any effect unless approved by
the Central Government; and shall become void if,
and in so far as, it is disapproved by the Central
Government. Under s. 408 the Government has the
power to prevent mismanagement in the affairs of the
I
(
"'-"
(1) S.C.R. SUPREME COURT REPOB.TS
965
Company and under the proviso in lieu of passing any
1958
order under sub-s. (1) the Ce1itral Government may, if R .
B 1 a
the company has not availed itself of the option given K.at 0,: '~h~:,j
to it under s. 265, direct the company to amend its
v.
Articles in the manner provided in that section and Raglumath llfora
make fresh appointments of directors in pursuance of
and Others
the Articles as so amended, within such time as may
be specified in that behalf by the Central Government.
Section 409 empowers the Central Government to
prevent change in the number of directors likely to
affect the company prejudicially. It could not be said,
because of these provisions, that a company was in
the service of the Government. It seems to us, therefore, that the mere power of control and supervision
of a Grama Panchayat exercising administrative functions would not make the Grama Panchayat or any of
its members a person in the service of the Government.
Even if it could be said that the Grama Panchayat in
the exercise of its administrative functions exercised
duties in the nature of Governmental duties it could
not thereby be said that its Sarpanch was in the
service of the Government. So far as the Sarpanch is
concerned, he is merely the executive head of the
Grama Panchayat which carries out its functions
through him. He is not appointed by the Government.
He is not paid by the Government. He does not exercise his functions as one in the service of the Government and he can only be removed on the ground of
negligence, inefficiency or misbehaviour. We have
been unable to find a single provision of the Orissa
Act from which we could say that a Sarpanch is a
person in the service of the Government. Reference
had been made on behalf of the respondent No. 1 to
s. 31 of the Orissa Act which authorizes the Grama
Panchayat to enter into a contract with the State
Government to collect all or any class of taxes or dues
payable to the Government at a prescribed percentage
as collection charges. As the Grama Sasan is a body
corporate and the Grama Panchayat is its executive
authority, the statute enabled the Grama Panchayat
by provisions of s. 31 to enter into a contract with the
Sti-te Government to collect its taxes and its dues. It
Imam j.
966
SUPREME COURT REPORTS
[1959] Supp.
z95B
cast no obligatory duty upon the Grama Panchayat
R .
B h d
to collect such taxes or dues of the Government. No
K. ·~~ v.: ~h~:i provision of the Orissa Act has been placed before us
v.
by which the State Government could order a Grama
Raghunath Misra Panchayat to collect its taxes or its dues.
:F'urther-
••d Others
more, under cl. (b) to s. 31, a Grama Panchayat is
Imam].
authorized to enter into similar contracts with proprietors or land holders to collect their rents. The provi·
sions of s. 31 militate against the theory that the
Grama Panchayat is in the service of the Government.
There would be no occasion for such a provision if the
Grama Panchayat was in the service of the Government in which case it would have to carry out the
orders of the Government to collect its taxes or its
dues.
Even if on a reasonable construction of the provisions of the Orissa Act it could be held that a Sarpanch
of the Grama Panchayat was a person in the service
of the Government, it would have to be further held
that he was of the class of officers mentioned in
s. 123(7)(f). Clause (f), in the first instance, speaks of a
person in the service of the Government who is a
revenue officer and then further extends the class to
village accountants. The words "such as patwaris,
lekhpals, talatis, karnams and the like " are merely
descriptive of the words "Revenue officers including
village accountants". Under cl. (f) it is essential that
a person in the service of the Government must be a
revenue officer or a village accountant, by whatever
name such officer or village accountant may be described. The exclusion of every other village officer
from the provisions of cl. (f) compels the conclusion
that before this clause can apply to a Sarpauch of the
Grama Panchayat under the Orissa Act it must be
proved that he is either a revenue officer or a village
accountant. The mere fact that under s. 31 of the
Orissa Act a Grama Panchayat is enabled to enter
into a contract with t.he State Government to collect
its taxes or its dues cannot convert a Sarpanch into a
revenue officer.
No doubt a Grama Panchayat would
have to supervise and maintain village and field
boundary marks and village records if required to do
r
-
(1) S.C.R.
SUPREME COURT REPORTS
967
so by the State Government under s. 2l(r) of the
1958
Orissa Act. In the present case there is no proof that
.
the Grama Panchayats in question were required to
Ra;a Bahadur
d
h th.
b th G
t
It •
.
'fi /\. C. Deo Bhanj
o any sue
mg y
e
overnmen .
IS s1gm .
cant that under s. 54(l)(xiv) of the Orissa Act it is a Raghun;;h Misra
choukidar appointed under that Act by the District
and Othm
Magistrate on whom a statutory duty is cast to keep
watch over boundary marks and report to the Grama
Imam J.
Panchayat any loss or damage caused to the boundary
marks defining villages. The Grama Panchayat, however, bas not been assigned positively any functions
under the Orissa Act }Vhich are discharged by a.
revenue officer. The provisions of s. 2l(r) would not
by itself convert a Sarpanch of a Grama Panchayat
into a revenue officer. Similarly, there is no provision
of the Orissa Act which shows that a Sarpanch is a
village accountant. It had been suggested on behalf
of respondent No. 1 that if it could be established that
a Sarpanch was a revenue officer or a village accountant, then the very fact that he was such a person
made him a person in the serviqe of the Government.
It is doubtful whether any such necessary conclusion
arises, but there is no need to make further reference
to this submission as, in our opinion, a Sarpanch of
the Grama Panchayat under the Orissa Act is neither
a revenue officer nor a village accountant.
It follows, therefore, that in the present case the
two essential elements that a Sarpanch must be a person in the service of the Government and that he
belongs to the class mentioned in cl. (f) of sub-s. (7) of
s. 123 have not been established. Even if one of them
had been established and not the other the provisions
of s. 123(7) would not apply to such a person. In our
opinion, the High Court erred in supposing that
because a Sarpanch of a Grama Panchayat under the
Orissa Act exercised governmental duties he must be
regarded as a person in the service of the Government.
The High Court did not give any clear finding that a
Sarpanch, even if a person in the service of the
Government, was either a revenue officer or a village
accountant. In our opinion, the provisions of s. 123(7)
do not apply to him. Therefore, it cannot be said that
Raja Bahadur
/(. C. Deo Bhanj
v.
Raghunath ilfisra
and Others
Imam].
December I9.
968
SUPREME COURT REPORTS [1959] Supp.
any corrupt practice under s. 123 had been established
in the case and the election of the appellant could not
be set aside on the only ground on which his election
had been set aside by the High Court. The appeal is
accordingly allowed with costs and the election petition of respondent No. l is dismissed.
Appeal allowed.
GUMMALAPURA TAGGINA MATADA
KOTTURUSWAMI
v.
SETRA VEERA VV A AND OTHERS
(JAFER IMAM, S. K. DAs and J. L. KAPUR, JJ.)
Hindu Law-Widow in possession of husband's propertyAdopted son getting into possession-Adoption invaUd-Wheti}er
widow is in constructive possession-•• Property possessed by a
female Hindu", Meaning of-Hindu Succession Act, r956 (30 of
~~
r956), s. I4.
Sub-section (1) of s. 14 of the Hindu Succession Act, 1956,
provided : "Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall be
held by her as full owner thereof and not as a limited owner."
A suit instituted by the nearest reversioner of K for a
declaration that the adoption made by K's widow was invalid,
was dismissed and during the pendency of the appeal filed
against the decree dismissing the suit, the Hindu Succession Act,
1956, came into force. At the hearing of the appeal the respondent raised the preliminary objection that even if the adoption
were held to be invalid, the appellant's suit must fail in view oi
the provisions of s. 14 of the Act under which K's widow, who
was a party to the suit and the appeal, would be entitled to a
full ownership of her husband's properties; while it was urged
for the appellant that s. 14 of the Act did not apply to the facts
of the case because the properties were not in the possession of
K's widow, but were only with the 11dopted son at the time the
Act came into force.
'
Held, that the word "possession" in s. 14 of the Hindu
Succession Act, 1956, is, used in the widest connotation and it
may be either actual or constructive or iq any form recognised
by law.
-·