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PETITIONER: RAJA BAHADUR K. C. DEO BHANJ

       Vs.

RESPONDENT: RAGHUNATH MISRA AND OTHERS

DATE OF JUDGMENT: 18/12/1958

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER DAS, S.K. KAPUR, J.L.

CITATION:  1959 AIR  589            1959 SCR  Supl. (1) 952  CITATOR INFO :  E          1960 SC 122  (13)

ACT: Election-Corrupt  Practice-Person in service of  Government, obtaining  assistance  of-Sarpanch  of  Grama  Panchayat  in Orissa-Whether  such  a  person- If Sarpanch  is  a  revenue officer or a village accountant-Representation of the People Act,   1951  (43  of  1951),  S.  123(7)(f)  -Orissa   Grama Panchayats Act, 1948 (Orissa XV of 1948).

HEADNOTE: 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 appellant  had  committed  the  corrupt  practice  under  S. 123(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 with- in the meaning of s. I23(7)(f) Of the Act. Held,  that a Sarpanch of Grama Panchayat in Orissa was  not one  of  the  persons  contemplated  by  s.  I23(7)(f)   and consequently  the  appellant was not guilty of  any  corrupt practice   in  obtaining  assistance  of  Sarpanches.    Two conditions must co-exist before S123(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 953 specified  in  cl. (f).  There was a distinction  between  " serving  under the Government " and " in the service of  the Government "; 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  served  under   the Government but was in the service of the Government and this imported  the relationship of master and servant.   None  of the  provisions  of the Orissa Grama Panchayats  Act,  1948, suggested that as between the State Government and the Grama Panchayat  and its Sarpanch any such  relationship  existed.

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The mere power of control and supervision of Government over a  Grama  Panchayat exercising administrative  functions  or performing duties of governmental nature could not make  the Grama  Panchayat 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 Sarpanch  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).

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 480 of 1958. Appeal  by special leave from the judgment and  order  dated April  15, 1958, of the Orissa High Court in  Misc.   Appeal No. 194 of 1957, arising out of the judgment and 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.  C.  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. 120 954 For  the  general  seat the election was  contested  by  the appellant,  respondent  No.  1 and  respondent  No.  3.  The appellant  obtained  17,700 votes, respondent No.  1  15,568 votes  and respondent No. 3 3,589 votes.  The  election  was held  on February 27, 1957, and the appellant  was  declared elected on March 5, 1957. Respondent No. 1 filed an election petition questioning,  on various  grounds,  the  election  -of  the  aPpellant.   The Election  Tribunal  dismissed the petition holding  that  no grounds  had  been established to invalidate  the  election. Respondent  No.  1  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. 1 to invalidate the election of the appellant was that the nomination 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 el. (d) of sub- s.  (1) 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

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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. 1 and in  relation  to  his candidature; and the third was, the obtaining and  procuring by respondent No. 1 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 955 had  not  been  established.  With reference  to  the  third ground the High Court was of the opinion that a Sarpanch  of the  Grama  Panchayat,  though  not  a  Government   servant appointed  by the Government, was none the less a person  in the  service of the Government as he performed many  of  the governmental 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 the  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. 123(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(1)(c) of the  Constitution  applied. On  behalf of respondent No. 1 an objection had  been  taken that  Art. 133(1)(c) of the Constitution did not  apply  and the High Court could not have certified that this was a  fit case  for appeal to this Court.  It seems to us  unnecessary to  decide whether in a case of this kind the provisions  of Art. 133(1)(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. 956 In  order to remove all doubts in the matter, we  grant  the appellant  special leave to appeal against the  decision  of the High Court of Orissa and proceed to deal with the appeal on that basis. The  Act  was  amended in 1956.  Before  the  amendment  the relevant  portion of s. 123 for the purpose of  this  appeal was contained in sub-s. (8) which %-as 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

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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  whatever name  lie  is called, employed in that  State,  whether  the office be 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 s. 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 person in the service of  the  Government and belonging to any of the following classes, namely:- (a)  gazetted officers; (b)  stipendiary judges and magistrates; 957 (c)  members of the armed forces of the Union; (d)  members of the police forces; (e)  excise officers; (f)  revenue  officers including village  accountants,  such as,  patwaris, lekhpals, talatis, karnams and the  like  but excluding other village officers; and (g)  such  other  class  of persons in the  service  of  the Government as may be prescribed. Explanation-(I)  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 and 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 any 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   tinder   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

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958 State unless such ’Person was declared to be one to whom the provisions  would not apply.  After the amendment,  however, the  provisions of s. 123(7) are narrower- in scope.   These provisions  apply  to  any  person in  the  service  of  the Government belonging to the classes specified in cls. (a) to (g) and none else.  For the purpose of this appeal it is el. (f)  which will have to be considered, as the other  clauses cannot in any case apply. The  principal  question  for  consideration  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 Sarpanch  of  a Grama  Panchayat constituted under the Orissa Act: (1)  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  one  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 relating to the Grama Panchayat  and  the duties  to be discharged by the Sarpanch indicate  that  the Sarpanch  is  in  the 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 by  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 any property held  by it and to enter into contracts and to do all  other things necessary for the purpose of carrying out the  provi- sions  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 959 Grama Sasan shall be exercised, performed and discharged  by the  Grama  Panchayat.   The Executive power  of  the  Grama Panchayat  shall be exercised by the Sarpanch elected  under s.  10, who shall act under the authority of the said  Grama Panchayat.   The Grama Sasan shall elect, in the  prescribed manner,  from  amongst its members  an  Executive  Committee which  will  be known as the Grama 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.   As  the  appointment  of the  Sarpanch  is  Dot  by Government, this would be one of the factors in holding that the  Sarpanch  was  not in 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  remunera- tion from the Government.  The power to remove a Sarpanch by the State Government is stated in s. 16 but the removal  can

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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 be taken into consideration in deciding whether a person  was  in  the  service  of  the  Government,  namely, appointment  of the person, such a person to act  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 960 a  Chairman  of the Municipality, but it could not  be  said that the members of the Municipality or their Chairman  were in the service of the Government. On  behalf  of  respondent  No. 1  it  was  urged  that  the expression  in  service of Government" had a  wider  concept than the expression serving under the 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  not necessary   to  consider  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 regarded  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 shall be fixed by the District Magistrate.  Under sub-s. (6) if in an election the 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 a. 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 includ- ing  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 961 to   remove  a  Sarpanch  on  the  ground   of   negligence, inefficiency, or misbehaviour.  Under s. 17 a Sarpanch shall give effect to the decision of the Grama Panchayat; provided that  if in his opinion any such decision is  subversive  of peace  and  order  in the locality or  results  in  manifest injustice  or  unfairness  to  an  individual  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 be 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

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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 members 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 cls. (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 the 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 its  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 suits against them  for  loss,  waste or misapplication  of  any  property belonging to the 121 962 Grama  Panchayat as the result of direct consequence of  his neglect or misconduct while a member of the Grama Panchayat, Joint  Committee or other Committee.  Under sub-s.  (3)  the Provincial Government has the power to institute such a suit on  its  own  initiative.  Under s. 36 all  members  of  the Grama.  Panchayat 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 Panchayat.  Under s. 44(2) a Grama  Panchayat  with the  previous sanction of the State Government may impose  a tax, toll, fee or rate on matters referred to in cls. (a) to (n).  Under sub-s. (4) the District Magistrate is authorized to  review or revise the tax, toll, fee or rate  imposed  by Grama  Panchayat.  Under sub-s. (5) the District  Magistrate may  by an order in writing require the Grama  Panchayat  to levy  or  increase any tax, toll, fee or rate  specified  in sub-s.  (2)  subject  to the  conditions  ’and  restrictions contained therein, if in his 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  Magis- trate in relation to a Grama Panchayat whereby he may by  an order in writing prohibit the execution or further execution of a resolution or ail 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  made  the   Grama Panchayat  come  under the control and  supervision  of  the State  Government and that the duties and functions  of  the

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Grama Panchayat to be performed by its 963 Sarpanch  were  governmental duties.  It was  further  urged that  in considering whether a Sarpanch was a person in  the service of Government the essential elements to be borne  in mind were the control and supervision over him by the  State Government  and  its power to remove him  from  his  office. Neither  the 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  I  serving under   the  Government’  and  I  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 under 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 Grama 964 Panchayat and its Sarpanch any such relationship exists.  It is  true that the State Government, the District  Magistrate and  the Sub-divisional Magistrate have been  given  certain powers  of control and supervision over the Grama  Panchayat but those powers of control and supervision are in  relation to  the administrative 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  Government merely because it exercised administrative functions and  to some  extent was under the control of the  Government.   Co- operative  societies  generally  are  very  much  under  the control  and supervision by the State Government or  one  of its  officers  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  in the  service  of  the  Government.   Even  with  respect  to companies, progressively, legislation has been giving  power to  the Government to control and supervise them.  Under  s. 259   of  the  Indian  Companies  Act,  1956,   in   certain

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circumstances,  any increase in the number 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 965 Company  and under the proviso in lieu of passing any  order under sub-s. (1) the Central Government may, if the  company has  not availed itself of the option given to it  under  s. 265, direct the company to amend its Articles in the  manner provided  in  that section and make  fresh  appointments  of directors in pursuance of 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 State Government to collect its taxes and its dues.  It 966 cast no obligatory duty upon the Grama Panchayat to  collect such  taxes or dues of the Government.  No provision of  the Orissa  Act  has been placed before us by  which  the  State Government  could  order a Grama Panchayat  to  collect  its taxes  or its dues.  Furthermore, under el. (b) to s. 31,  a Grama   Panchayat  is  authorized  to  enter  into   similar contracts with proprietors or land holders to collect  their rents.  The provisions 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

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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 Sarpanch 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 the 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 967 so by the State Government under s. 21(r) of the Orissa Act. In  the  present  case  there is no  proof  that  the  Grama Panchayats in question were required to do any such thing by the Government.  It is significant that under s.  54(1)(xiv) of the Orissa Act it is a choukidar appointed under that Act by the District Magistrate on whom a statutory duty is  cast to  keep watch over boundary marks and report to  the  Grama Panchayat  any loss or damage caused to the  boundary  marks defining  villages.  The Grama Panchayat, however,  has  not been assigned positively any functions under the Orissa  Act which  are discharged by a revenue officer.  The  provisions of  s.  21(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  service 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

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968 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. 1 is dismissed. Appeal allowed.