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 167 of 1957
Veda Vyasa and A V Viswanatha Sastri R Patnaik and Ratnaparkhi A G for the appellant
HMahapatra 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 17700 votes respondent No 1 15568 votes and respondent No 3 3589 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 section 1 of section 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 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 section 1237f 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 section 1237f 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 section 140 of the Act this was a fit case for the removal of the disqualification by the Election Commission under section 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 article 1331c of the Constitution applied
On behalf of respondent No 1 an objection had been taken that article 1331c 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 article 1331c 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 article 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 section 123 for the purpose of this appeal was contained in sub section
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 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 section 123 is in sub section 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
2For 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 section 1238 before it was amended and section 1237 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 section 1238 covered a wide field and referred to every person serving under the Government of India or a 958 State unless such Person was declared to be one to whom the provisions would not apply
After the amendment however the provisions of section 1237 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 section 1237
Obviously two things will have to be established before the provisions of section 1237f 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
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 section 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 section 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 section 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 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 section 102 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 section
4 of this section the number of members of a Grama Panchayat shall be fixed by the District Magistrate
Under sub section
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 section
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 section 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 section 16 the State Government is empowered 961 to remove a Sarpanch on the ground of negligence inefficiency or misbehaviour
Under section 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 section
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 section
3 of section 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 section 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 section 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 section
3 the Provincial Government has the power to institute such a suit on its own initiative
Under section 36 all members of the Grama
Panchayat shall be deemed to be public servants and in the definition of  legal remuneration  in section 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 section 442 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 section
4 the District Magistrate is authorized to review or revise the tax toll fee or rate imposed by Grama Panchayat
Under sub section
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 section
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 section 21 or undertaken under section 22
Under section 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 section 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 section 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 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 section 259 of the Indian  in certain 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 section 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 section 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 section
1 the Central Government may if the company has not availed itself of the option given to it under section 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 section 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 section 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 section 31 a Grama Panchayat is authorized to enter into similar contracts with proprietors or land holders to collect their rents
The provisions of section 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 section 1237f
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 section 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 section 21r 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 section 541xiv 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 section 21r 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 section
7 of section 123 have not been established
Even if one of them had been established and not the other the provisions of section 1237 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 section 1237 do not apply to him
Therefore it cannot
be said that 968 any corrupt practice under section 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


Summary:
The Union of India the appellant approached the High Court under Article 226 of the Constitution challenging notices of demand issued by the Municipal Council respond ent No1 claiming tax to the tune of Rs 28400 by way of Service charges  due for the period 1954 to 1960 under Article 285 of the Constitution read with Section 135 of the Indian Railways Act 1890
The High Court dismissed the writ petition negativing the claim against which this appeal by special leave was filed
Allowing the appeal this Court HELD 1
Section 135 of the Indian Railways Act 1890 gets saved under Article 2851 of the Constitution itself
The said Article provides that property of the Union shall save in so far as Parliament may by law otherwise provide be exempt from all taxes imposed by the State or by any authority within a State
185 A B 2
Section 1315 of the Railways Act permits taxation of Railways by the local authority in the manner given therein the Central Government being the controlling and the regu lating authority permitting liability at a given point of time its extent and manner
The Indian Railways Act being a central enactment has no role to play in sub Article 2 of Article 285 for that is a sphere in which the State legis lation operates
186 A B 3
The reasoning of the High Court to oust the applica bility of Section 135 of the Indian Railways Act on the test of sub Article 2 of Article 285 was totally misplaced as also in not venturing to create room for it in sub Article 1 of Article 285
The interplay of the constitutional 184 and legal provisions being well cut and well defined re quired no marked elaboration to stress the point
186 B C