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Judgment
P. Chandra Reddy, C.J.—The Petitioner claims the issuance of a writ of quo warranto, directing Respondents 2 to 14 to exhibit information
as to the authority under which they could perform the duties of the members of the Panchayat of Takkolam. The facts giving rise to these
proceedings may be briefly narrated. Takkolam is a whole revenue village of North Arcot district, which was constituted as a panchayat in 1917.
Under the Madras Village Panchayats Act, 1950, it was classified as a second-class panchayat. After the Act of 1950 came into force, a
notification u/s 61 of that Act was issued on 22nd December 1952, fixing the strength of the panchayat at eight exclusive of the president, and
there was no reserved seat for the Scheduled castes. Subsequently, by a notification, dated 8th March 1958, the then Regional Inspector of
Municipal Councils and Local Boards, North Arcot district, fixed the strength of the panchayat at fifteen, and divided the village into five wards,
allocating 4, 4, 2, 2, and 3 to Wards Nos. 1, 2, 3, 4 and 5 respectively. It may be mentioned here, that this time also, no reservation was made for
Scheduled castes. This notification was considered by the panchayat and approved at its meeting held on 19th March 1958.
On 1st June 1961, the Collector of North Arcot classified Takkolam as Class 1 panchayat, as required by Section 5(1)(a) of Madras Act X of
1950, with effect from 1st April 1961, since the population of that village had increased to 6,105. Meanwhile, Madras Act XXXV of 1958,
hereinafter referred to as the Act, which consolidated all the law in relation to local administration, was put on the statute book. In accordance with
the scale prescribed u/s 10 of this enactment, the strength of the panchayat as also the number of wards was proposed to be fixed at thirteen. Even
now, no reservation for the Scheduled Castes was proposed. This proposal was considered and accepted once again by the panchayat at its
meeting held on 21st August 1964, the meeting being attended by thirteen, including the Petitioner and the proposal was accepted unanimously.
The notification fixing the strength of the panchayat, as also the number of wards, was published in the Fort St. George Gazette Supplement, Part
II, dated 9th December 1964. Subsequently, elections were held on 28th January 1965, and Respondents 2 to 12 were declared elected.
Questioning the validity of these elections, this writ petition has been filed for the relief mentioned above. In support of this petition, three
contentions are urged by Sri Section Mohan Kumaramangalam ; (i) The panchayat was not validly constituted, as no notification contemplated by
Section 3 of the Act was issued ; (ii) the non-reservation of seats for the members of the Scheduled caste had nullified the elections ; and (iii) the
division of the village into wards by the inspector was without jurisdiction, as no rules prescribing the scale, in accordance with which the division
was to be effected, were formulated by the Government and this had rendered all the elections void.
We shall now deal with these points seriatim. The first contention is based on the language of Sections 3 and 8 of the Act. In order to test the
soundness of this argument, we have to read the provisions of these two sections. Section 3, in so far as it is relevant for this enquiry, runs as
follows:
(1) The Inspector shall by notification--
(a) classify and declare every local area comprising a revenue village or villages or any portion of a revenue village or contiguous portion of two or
more revenue villages and having a population estimated at not less than five thousand and an annual income estimated at not less than ten thousand
rupees as a panchayat town for the purposes of this Act,
Section 8, omitting the unnecessary portions, reads thus;
(1) A panchayat shall be constituted for each village and for each town with effect from such date as may be specified in the notification issued in
that behalf by the Inspector.
Basing himself on these two provisions, learned Counsel for the Petitioner contends that the non-notification of Takkolam as town panchayat has
resulted in the invalidity of the constitution of the panchayat. We are not disposed to accede to |this proposition. In our opinion, these two sections
cover panchayats that come into existence for the first time and do not take within their ambit the panchayats which were already in existence. That
this is so is manifest from the relevant rules in Schedule IV of the Act.
Section 190 of the Act requires that the Act shall be read subject to the rules in Schedule IV. That section recites:
In regard to the first constitution of panchayat union councils in accordance with the provisions of this Act and in regard to the first reconstitution in
accordance with the provisions of this Act of panchayats in existence at the commencement thereof, and otherwise in first giving effect to the said
provisions they shall be read subject to the rules in Schedule IV.
We shall now turn to the material provisions of Schedule IV, which contains transitional provisions. Rule 2 enacts:
Every panchayat which was classified as a Class I panchayat under the old Act shall on the said date be deemed to have been classified as a
town panchayat under this Act and all panchayats which before the said date known as class II panchayats, shall, after the said date, be known as
village panchayats.
Every local area which, immediately before the said date, was within the jurisdiction of a Class I panchayat shall be deemed to have been
declared to be a panchayat town under this Act and every local area which immediately before the said date was within the jurisdiction of a Class
II panchayat shall be doomed to have been declared to be a panchayat village under this Act.
The total number of members of a panchayat fixed under the old Act and in force on the said date shall be deemed to be the total number of its
elected members under this Act.
The members of a panchayat holding office on the said date shall be deemed to be the elected members of the panchayat under this Act and
such members shall continue to hold office up to such date as the Government may, by notification, fix in this behalf or in case no such date is fixed,
up to the date on which their term of office would have expired if this Act had not come into force.
The reservation of seats for the members of the Scheduled Castes made under the old Act and in force on the said date shall be deemed to have
been made under this Act.
It is plain from these provisions that, so far as the reconstitution of the panchayats is concerned, the panchayats that were in existence at the
commencement of the Act shall be deemed to have declared to be panchayats and the total number of panchayat members fixed under the old Act
shall be deemed to be the total number of its elected members under this Act. The sitting members also were deemed to be continuing till such date
as the Government, by notification, fix in this behalf. The position was the same in regard to the reservation of the seats also. So, the panchayat in
question was continuing under Act XXXV of 1958, as if it was constituted under the relevant provisions of this Act. It is not suggested that the
Takkolam Town Panchayat was not properly constituted under Madras Act X of 1950. It may be mentioned here that the alteration with regard to
the strength of the panchayat and the number of divisions was in accordance with the new enactment. In this situation there was no need to issue
notifications, classifying Takkolam as a panchayat town u/s 3 of the Act and constituting a panchayat for this town u/s 8 of the Act. We are,
therefore, unable to give effect to the first contention.
We feel that the second point is equally untenable. The provision of law relating to this submission is contained in Section 15. That says:
In every panchayat, the Inspector may, subject to such rules as may be prescribed by notification, reserve such number of seats...(not exceeding
3)...for the members of the Scheduled Castes (and Scheduled Tribes)....
It is maintained by learned Counsel for the Petitioner that an obligation is cast by this section on the Inspector to reserve at least one seat for
members of Scheduled Castes and Scheduled Tribes. It is said that, although the expression used by this section is may it has compulsory force of
shall having regard to the alleged intention of the Legislature that the interests of the members of the Scheduled Castes and Scheduled Tribes
should be safeguarded. We are not inclined to accept this construction of Section 15. It is true that, in some contexts, the word may denote
compulsion. But prima facie, it imports only a discretion and it should be construed as discretionary, unless there is anything in the context to
indicate that it is meant to be mandatory. It is a golden rule of construction or interpretation of statutes that the words of an enactment must be
given their ordinary meaning. We do not find anything in the statute under consideration which requires us to deviate from this rule. There can be
little doubt that discretion was vested in the Inspector to give reservation to Scheduled Castes and Scheduled Tribes if it was necessary in their
interests, and to give proper representation to this section of the population. It would have been far from the intention of the Legislature to compel
the inspector to reserve seats for the Scheduled Castes and Scheduled Tribes, irrespective of whether they would even otherwise secure proper
representation or not. In cases like this, there is no need for making any such reservation, in view of the fact that the Scheduled Castes could get
their representatives elected to the panchayat. It may incidentally be mentioned that, subsequent to 1950, no reservation of seats was made for the
members of the Scheduled Castes and Scheduled Tribes, and the notifications omitting reservation for the panchayats were unanimously approved
by the panchayat on all occasions. For these reasons, we hold that the non-reservation of seats for the Scheduled Castes has not vitiated either the
division of the village into wards or elections based thereof. As regards the intention of the Legislature, it has to be gathered from the language
employed by it, and the language does not lend any colour to the theory propounded on behalf of the Petitioner.
The learned Counsel next laid stress on the omission, in Section 15 of the Act, of the expression if any which occurred in the earlier statute and
argues it indicates that no option was left to the Inspector in the matter of such reservation. We are not inclined to attach any significance to the
absence of these words in Section 15 of the Act. It is innocuous and does not denote compulsion, as suggested by Sri Mohan Kumaramangalam.
It follows that the argument founded on Section 15 of the Act has to be negatived.
The only question that survives is whether the absence of rules regulating the manner of division of the panchayat into wards has affected the
legality of the election of the members to this panchayat. As the controversy on this issue revolves round Section 16 of the Act, we will do well, to
look at that section, which runs as follows:
For the purpose of electing members to a panchayat, the Inspector shall after consulting the panchayat, if any, by notification, divide the village or
town into wards and determine the number of members to be returned by each ward in accordance with such scale as may be prescribed.
Admittedly, no rules were framed, prescribing the scale for the division of wards. How far does this absence of rules divest the Inspector of his
jurisdiction to effect a division envisaged in this section? At the outset, it should be remembered that the prescribing of the scale is not compulsory.
It is only an enabling provision. If that were so, how could it be postulated that the omission to frame rules would disable the Inspector to carry out
his statutory duties? This section makes it imperative for the Inspector to divide the panchayat into wards after consulting the panchayat and
conformably to the scale if it is prescribed. If the Government, which is the authority to make the rules by virtue of Section 178, fails to exercise
that power in relation to this section, it could not be postulated that there could be no division of the panchayat into wards and elections to that
panchayat based upon this division. The Government is under no obligation to make the rules, as the language used in that section is one of mere
permission. This, in our opinion, does not absolve the Inspector from discharging the duty which is of a mandatory nature. This is not a case of a
power coupled with a duty, in which case it might plausibly be contended that the power could not be exercised without fulfilling the obligations
cast upon the Inspector. In this position, it is futile to contend that, as the Inspector has to divide the village in accordance with any scale that might
be prescribed by the Government, and, as the scale was not prescribed, he has no jurisdiction to effect that division.
Narendra Kumar and Others Vs. The Union of India (UOI) and Others, cited to us by the learned Counsel for the Petitioner does not lend any
colour to the proposition advanced by learned Counsel for the Petitioner. The main question that arose there was whether the restrictions imposed
by the Non-ferrous Metal Control Order on dealers in non-ferrous metal could come within the saving provision of Articles 19(5) and (6) of the
Constitution. It arose in a petition filed by three dealers in imported copper and carrying on their business at Jagadhri in the State of Punjab, u/s 32
of the Constitution for the enforcement of their fundamental rights. These persons entered into contracts of purchase of copper with importers of
Bombay and Calcutta, and, before they could take delivery from the importers, the Government of India issued, on 2nd April 1958, an order
called Non-ferrous Metal Control Order, 1958. Non-ferrous metal was defined in that order to mean:
Imported copper, lead, tin and zinc in any of the forms specified in the Schedule of the order.
The price was controlled by Clause 3 of that order, which provided in Sub-clause 1 that
no person shall sell or offer to sell any non-ferrous metal at a price which exceed the amount represented by an addition of 3� per cent to its
landed cost,
and, in its second sub-clause, that:
no person shall purchase or offer to purchase from any person non-ferrous metal at a price I higher than at which it is permissible for that other
person to sell to him under Sub-clause (1).
Clause 4, which was designed to regulate the acquisition of non-ferrous metal by permit only, provided that:
no person shall acquire or agree to acquire any non-ferrous metal except under and in accordance with a permit issued in this behalf by the
Controller in accordance with such principles as the Central Government may from time to time specify.
The Central Government had not specified any principles to regulate the distribution and supply of commodities. That being so, no permits
could be issued to enable any dealer to deal in this metal. On the face of it, clause 4 of the Order read with the principles specified in the letter sent
by the Government had the effect of completely eliminating the dealers from the trade in imported copper. It was also plain that, independently of
clause 4, the fixation of price at which the copper could be bought and sold at 3� per cent above the landed cost had the effect of driving the
dealer out of the business in imported copper, since the importer could charge 3| per cent from the dealer and the dealer was prevented from
charging anything more than 3� per cent over the landed cost from the consumer. The position was, therefore, clear that, thenceforth, the actual
consumer of the commodity would have to get it direct from the importer.
It is in that context that their Lordships of the Supreme Court observed thus at page 391:
...so long as the principles are not specified by the Central Government no permit can be issued by the Controller. Enforcement of the provisions
that no person shall acquire or agree to acquire except under a permit, would thus, so long as the principles are not specified in a legal manner as
required by sub-Sections (5) and (6) of Section 3 of the Essential Commodities Act, would moan a total stoppage of the copper trade--not only of
the transactions of dealers but of any transaction whatever in imported copper. On the face of it this could not be a reasonable restriction in the
interests of the general public. There is no escape therefore from the conclusion that so long as the principles are not specified by the Central
Government by an Order notified in accordance with Sub-section (6) and laid before both Houses of Parliament in accordance with Sub-section 6
of Section 3, the regulation by Clause 4 as it is now worded is not within the saving provisions of Articles 19 (5) and 19 (6) of the Constitution,
and is void as taking away the rights conferred by Articles 19(1)(f) and 19(1)(g).
The situation is altogether dissimilar here. First of all, the fundamental right of the Petitioner is not in any way affected. The electoral right, a
violation of which may give a cause for complaint, is the right to vote and the right to stand as candidate at the elections. It is not the case of the
Petitioner that the manner of the division of the village into wards has in any way affected either of these two rights. Moreover, the Petitioners in the
case cited above could not carry on business without a permit and the permit could not issue without the principles regulating the issue of a permit
and distribution and supply of the commodities. But, u/s 16 of the Panchayats Act, it is not the rules prescribing the scales that enable the inspector
to effect the division. The rules have a bearing only on the method of division. They do not bring into operation the duty to make the division for
electing members to a panchayat. That being so, Narendra Kumar and Others Vs. The Union of India (UOI) and Others, does not afford any
analogy in this case and does not render any assistance to the Petitioner.
On the other hand, there is a catena of decisions which support our view that absence of rides does not vitiate either the division of the
panchayats into wards or the election based thereon. In Nemi Chand v. Secretary of State for India ILR (1907) Cal. 511, the question that was
posed was whether the Collector had power to detain the goods, although no regulations were framed by the Governor-General in Council u/s 18-
A (2) of the Sea Customs Act, 1878, as amended by the Merchandise Marks Act, 1889. Section 19-A of that Act, omitting the unnecessary
portions, reads as follows:
(1) Before detaining any such goods as are or may be specified in or u/s 18 or Section 19, as the case may be, or taking any further proceedings
with a view to the confiscation thereof under this Act, the Chief Customs Officer or other officer appointed by the Chief Customs authority in this
behalf may require the regulations under this section, whether as to information, security conditions or other matters, to be complied with, and may
satisfy himself in accordance with those regulations that the goods are such as are prohibited to be imported.
(2) The Central Government may make regulations, either general or special, respecting the detention and confiscation of goods, the importation of
which is prohibited, and the conditions, if any, to be fulfilled before such detention and confiscation, and may by such regulations determine the
information, notices and security to be given, and the evidence requisite for any of the purposes of this section and the mode of verification of such
evidence.
In that case, no regulations were framed touching the manner and procedure of confiscation. In view of this, it was contended that the
Collector could not act until and unless the Governor-General in Council had framed regulations under sub-Section (2) of Section 19-A. This
submission did not find favour with a Division Bench of the Calcutta High Court. They held that Section 19-A gave only an enabling power to the
Governor-General in Council to frame regulation and that it could not override the prohibiting language of Section 18 or the implied power of
detention u/s 19-A.
Considering the same provision of law, a division Bench of this Court in Collector of Customs v. Gokuldoss ILR (1955) Mad. 1248 ruled that
the framing of regulations could not be read as a condition precedent to bringing into operation the powers and authority of the customs officers
under Sections 19, 167(8) and 183. To a like effect is a judgment of Rajagopalan J., in Naina Mohd. v. T.P. Board AIR 1956 Mad. 289. The
learned Judge decided that the absence of rule for which a provision was made in the Village Panchayats Act (Act X of 1950) was not a condition
precedent to the exercise of jurisdiction conferred u/s 93 of that Act.
In the same trend of thought is Seoti Prasad Vs. Dr. Raghubir Datt Sharma, President Municipal Board, Farrukhabad and Others, . The point
that was debated there was whether the president of the municipality who was given power u/s 69-A of the Municipalities Act to frame charges
against the Executive Officer could exercise that power in the absence of rules prescribing the manner in which that enquiry was to be conducted.
It was argued there that the power to conduct the enquiry was dependent on the framing of the rules under Sub-section 3 of Section 69-A.
This contention c was negatived by the learned Judge, who held that the power to conduct the enquiry arose under Sub-section (1), that Sub-
section (3) only provided that the enquiry should be carried on in such manner as may be prescribed by the rules and that the power belonged to
the President independently of the rules under Sub-section 3 and the absence of rules might expose the enquiry itself to further scrutiny, but, on that
ground, it did not render the enquiry void. We are in agreement with the view taken in these decisions.
The pronouncement of the Supreme Court in The Dargah Committee, Ajmer Vs. State of Rajasthan, is of considerable assistance in this
inquiry. The point that was presented before the Supreme Court was that the demand made by the municipality from the owner of the building for
the expenses incurred in carrying out repairs to the building u/s 222(4) of the Ajmer-Merwara Municipalities Regulation VI of 1925 was
ineffective, since the demand was not made in accordance with the manner prescribed by rules as required by Section 234. In that case, no rules
prescribing the form for making the demand were framed under the regulation. The argument based on the failure of the concerned authorities
make the rule was that, unless the rules were framed and the form of notice was prescribed for making demand u/s 222(1), no valid demand was
made, and, therefore, an application could not be made u/s 234. This argument was overruled by the Supreme Court in the view that the statutory
power conferred on the Committee by Section 222(1) to make a demand was enforceable, notwithstanding the fact that no form was prescribed
for issuing a demand notice. We are satisfied that the principle enunciated in The Dargah Committee, Ajmer Vs. State of Rajasthan, governs the
instant case.
We are not persuaded that the formulation of rules prescribing a scale is a pre-requisite to the division into the wards by the inspector. As
stated earlier, the duty cast on the inspector to divide the panchayat into wards is not dependent on the scale to be prescribed by the Government.
That duty is cast in the earlier part of that section. The rules do not create the jurisdiction to make a division. They bear only on the manner of
division. The only import of that section is that the inspector is under an obligation to effect division irrespective of the existence or non-existence of
the scale; in case rules are framed, prescribing the scale, the division should be in accordance with that scale. It cannot, therefore, be postulated
that the failure on the part of the Government to prescribe the scale absolves the inspector from the duty he has to carry out under that section. If
we give effect to this contention Section 16 would be reduced to a futility and might result in there being no elections to the panchayat. Since, as
already indicated, that section only enabled the Government to make the rules, and does not issue a mandate to the Government in that behalf, it
was permissive for the Government to frame rules for that purpose. If they did not make rules, there could be no elections to the panchayats, if we
adopt the construction suggested on behalf of the Petitioner. We do not think we will be justified in putting a construction which would fail to
achieve the manifest purpose of this legislation. It could not be said that the omission to make the rules has enabled the Collector to act arbitrarily.
For one thing, Section 10 of the Act fixes the strength of the panchayat, and the division should be in relation to the strength prescribed under that
section. The division has to be normally effected with reference to the area and population of each of the wards. There is also the safeguard
contained in the requirement to consult the panchayat before the division is actually made by the inspector. That is not all. This division by the
inspector is subject to the revisional jurisdiction of the Government under Sections 157 and 158 of the Act. For these reasons, we reject the
contention founded on Section 16 of the Act.
There is another weighty reason why we should refuse relief to the Petitioner in this case. The division complained against was effected as far
back as October 1964, and elections took place on the basis of this division, the relators participating in these election. That apart, the Petitioner
filed his nomination for ward No. 13. Thus, not having sought to strike down the division by appropriate proceedings, the Petitioner cannot, at this
stage seek to nullify all the elections. In fact, he had acquiesced in the elections being conducted on the basis of the division of wards effected by
the inspector. It is, therefore, too late to make a grievance of the mode of division of the panchayat into wards. It is not as if any of his fundamental
rights has been violated. It does not affect any electoral right of either the relator or any of the voters of the panchayat. Having proceeded on the
assumption of the validity of the division of the panchayat village into wards, though cognizant of the alleged objection, it is not open to him at this
stage to seek to render the elections void.
There is ample authority for this view of ours. In Nain Sukh Das and Another Vs. The State of Uttar Pradesh and Others, , it was observed
that as the alleged infringement of the fundamental rights of the Petitioners under Article 15(1) and Article 14 related to rights which they in fact
never sought to exercise and for ascertaining which they took no steps while there was occasion for doing so, the Petitioners were not entitled to
relief under Article 32 of the Constitution. The rule is similarly stated in Achar v. State of Madras ILR (1954) Mad. 908. It was held there that a
relator would not be entitled to information in the nature of a quo warranto if he had acquiesced in the election to which he later on objected, or if
he was raising an objection which might have been put forward against himself at a previous election, or, while cognizant of the objection, he
voluntarily so acted as to enable the Respondent to exercise the office. Similarly, in Kutumba Rao v. Pamideswara Rao (1961) 2 and W.R. 327 a
division Bench of the Andhra Pradesh High Court decided that, where a person took part in the elections at all stages without raising any
objection, he could not question the validity of the elections subsequently under Article 220 of the Constitution. So, on this ground also, the petition
should fail.
In these circumstances, we see no justification to issue the writ asked for. The writ petition is accordingly dismissed with costs.