Raja Bahadur K. C. Deo Bhanj vs Raghunath Misra And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 480 of 1958

Decision Date: 18 December, 1958

Coram: Syed Jaffer Imam, S.K. Das, J.L. Kapur

In the case titled Raja Bahadur K. C. Deo Bhanj versus Raghunath Misra and Others, the Supreme Court of India delivered its judgment on 18 December 1958. The opinion was authored by Justice Syed Jaffer Imam and was pronounced by a bench comprising Justice Syed Jaffer Imam, Justice S. K. Das and Justice J. L. Kapur. The petitioner was Raja Bahadur K. C. Deo Bhanj and the respondents included Raghunath Misra together with additional parties. The judgment is reported in 1959 AIR 589 and 1959 SCR Supplement (1) 952, with a citator reference to 1960 SC 122 (13). The core dispute concerned the applicability of section 123(7)(f) of the Representation of the People Act, 1951, which penalises a person “in the service of the Government” who obtains assistance from a revenue officer or village accountant for the purpose of securing election. The appellant had been declared elected to the Orissa Legislative Assembly from the Daspalla double‑member constituency, and the first respondent filed an election petition alleging that the appellant had committed a corrupt practice by securing the help of certain Sarpanches of Grama Panchayats in Orissa to further his electoral chances. The election tribunal dismissed the petition, but on appeal the Orissa High Court set aside the election, holding that a Sarpanch qualified as a “person in the service of the Government” within the meaning of the statutory provision. This appellate decision therefore raised the question of whether the status attributed by the High Court to a Sarpanch was consistent with the requirements of the Representation of the People Act and the relevant provisions of the Orissa Grama Panchayats Act, 1948.

The Supreme Court examined the matter and concluded that a Sarpanch of a Grama Panchayat in Orissa did not fall within the class of persons contemplated by section 123(7)(f). The Court explained that two conditions must coexist for the provision to apply to a Sarpanch: first, the individual must be “in the service of the Government”; second, the individual must belong to the specific class of officers listed in clause (f), namely revenue officers or village accountants. The Court distinguished the expression “serving under the Government” from “in the service of the Government”, observing that the former does not necessarily create the master‑servant relationship required by the statute. A review of the Orissa Grama Panchayats Act, 1948 revealed no provision establishing such a relationship between the State Government and the Grama Panchayat or its Sarpanch. The Court held that the mere power of control and supervision exercised by the Government over a Panchayat’s administrative functions could not render the Panchayat or its Sarpanch a government servant. Moreover, the Sarpanch acted as the executive head of the Panchayat, was neither appointed nor paid by the Government, and could be removed only on grounds of negligence, inefficiency or misconduct. Consequently, the Court found that the Sarpanch was not under the control of the Government while performing his duties, and therefore the appellant could not be said to have committed the corrupt practice alleged under section 123(7)(f) of the Representation of the People Act.

It was held that the Sarpanch, although performing duties under the authority of the Government, was not subject to the Government’s control while carrying out those duties and therefore could not be described as being in the service of the Government. Moreover, the second criterion was also absent because a Sarpanch did not hold the position of a revenue officer or a village accountant, and consequently was not included in the category of officers specified in clause (f) of section 123(7). The matter then proceeded to the civil appellate jurisdiction, where Civil Appeal No 480 of 1958 was filed by special leave against the judgment and order dated 15 April 1958 of the Orissa High Court in Miscellaneous Appeal No 194 of 1957. That High Court decision had arisen from the judgment and order dated 26 October 1957 of the Election Tribunal at Puri in Election Case No 1/67 of 1957. Counsel for the appellant comprised Veda Vyasa and A. V. Viswanatha Sastri, assisted by R. Patnaik and Ratnaparkhi, while counsel for respondent No 1 included H. Mahapatra and P. K. Chatterjee representing G. C. Mathur. The judgment of the Court was delivered on 18 December 1958 by Justice Imam.

The appellant and respondent No 1 were among several candidates contesting the election to the Orissa Legislative Assembly from the Daspalla double‑member constituency, a constituency in which one seat was reserved for a candidate belonging to a scheduled caste. The Court noted that the election of the scheduled‑caste candidate was not the issue before it. For the general seat, the contest involved the appellant, respondent No 1 and respondent No 3. The appellant secured 17,700 votes, respondent No 1 obtained 15,568 votes, and respondent No 3 received 3,589 votes. The polling took place on 27 February 1957 and the appellant was declared elected on 5 March 1957. Subsequently, respondent No 1 filed an election petition challenging the election of the appellant on a number of grounds. The Election Tribunal rejected the petition, holding that the petitioner had failed to establish any ground that would justify setting aside the election. Dissatisfied with that outcome, respondent No 1 appealed the Tribunal’s order to the High Court of Orissa.

Among the several grounds advanced by respondent No 1 before the High Court to invalidate the appellant’s election was the allegation that the nomination of respondent No 3 had been improperly accepted because respondent No 3 was disqualified from contesting the election. The disqualification arose from respondent No 3’s status as a Sarbarakar of ten villages in the district of Nayagarh, a status that was listed in the schedule annexed to the petition. The High Court examined whether the office of Sarbarakar constituted an office of profit under the State Government of Orissa and concluded that it did. Accordingly, respondent No 3 was disqualified from becoming a member of the Assembly. Nevertheless, the High Court held that the acceptance of respondent No 3’s nomination did not materially affect the election of the returned candidate, as provided under clause (d) of subsection (1) of section 100 of the Representation of the People Act, 1951, hereinafter referred to as “the Act.”

In addition to the question of disqualification, the High Court considered three separate grounds raised by respondent No 1 to contend that the appellant had committed a corrupt practice. The first ground alleged bribery; the second contended that the appellant and his agents had published a pamphlet, identified as Exhibit 8, which contained statements that were false and that the appellant either knew to be false or believed to be false with respect to the personal character and conduct of respondent No 1 and his candidature. The third ground involved the allegation that respondent No 1 had obtained assistance from the Sarpanches of certain Grama Panchayats to further his election prospects. The High Court’s analysis of the first two grounds concluded that the appellant had not been proved to have engaged in bribery or in the publication of false statements, and therefore those allegations did not merit a finding of corrupt practice. The Court’s reasoning on the third ground, concerning the role of the Sarpanches, is set out in the subsequent portion of the judgment.

The petition also set out a third allegation, namely that respondent No. 1 had obtained and procured assistance for furthering his election prospects from the Sarpanches of certain Grama Panchayats, while the first two allegations related to false statements concerning the personal character, conduct and candidature of respondent No. 1. The High Court examined the first two allegations and concluded that they had not been proved on the evidence. Turning to the third allegation, the High Court expressed the view that a Sarpanch of a Grama Panchayat, although not appointed directly as a Government servant, nevertheless functioned as a person in the service of the Government because he performed many governmental duties, could be removed by the Government, and therefore fell within the ambit of section 123(7)(f) of the Representation of the People Act. The Court noted that a Sarpanch, as defined under the Orissa Grama Panchayats Act, 1948 (referred to as the Orissa Act), performed primarily governmental functions such as collection of taxes, maintenance of public accounts and other administrative tasks. The Court further observed that if such a person were excluded from the operation of section 123(7)(f), a great amount of undue influence could be exercised on voters, since these village officials wielded considerable influence because of the nature of their powers and the perception of the villagers. Accordingly, the High Court allowed the appeal, set aside the appellant’s election and held that the finding necessarily disqualified the appellant from membership of Parliament and of any State Legislature for six years under section 140 of the Act, but it also expressed the opinion that the case was suitable for removal of that disqualification by the Election Commission under section 144 of the Act. The appellant then applied to the High Court for a certificate declaring the matter a fit case for appeal to this Court; the certificate was granted although one learned Judge expressed doubt as to whether the provisions of Article 133(1)(c) of the Constitution applied. Respondent No. 1 raised an objection on the ground that Article 133(1)(c) did not apply and that the High Court therefore lacked authority to issue such a certificate. The Court considered it unnecessary to resolve whether Article 133(1)(c) applied, because even if it did not, the appeal raised a point of law of considerable public importance and would have merited special leave to appeal under Article 136. To eliminate any doubts, the Court granted the appellant special leave to appeal against the High Court of Orissa’s decision and proceeded to hear the matter on that basis. The Representation of the People Act was later amended in 1956, and before that amendment the relevant portion of section 123 was contained in sub‑section (8).

In this case, the Court explained that the purpose of the appeal was contained in subsection eight of section 123, which read 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.” The provision was followed by an Explanation. For the purposes of that clause, paragraph (a) clarified that a person serving under the Government of India did not include any individual who had been declared by the Central Government to be exempt from the provisions of the clause. Paragraph (b) defined a person serving under the Government of any State to include a patwari, chaukidar, dafedar, zaildar, shanbagh, karnam, talati, talari, patil, village munsif, village headman or any other village officer, whatever name he might be called, employed in that State, whether the office was a full‑time post or not, but it excluded any person, other than such village officers, who had been declared by the State Government to be exempt from the clause. After the amendment, the relevant portion of section 123 was moved to subsection seven, which read: “(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; (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.” The Explanation to this clause stated that the expression “agent” included an election agent, a polling agent and any person who was held to have acted as an agent in connection with the election with the consent of the candidate. Sub‑paragraph (2) clarified that for the purposes of clause (7) a person would be deemed to assist in the furtherance of a candidate’s election if he acted as an election agent, polling agent or counting agent of that candidate. The Court observed that there was a material difference between the language of subsection eight before its amendment and the language of subsection seven as now contained in the Act. Under the former provision there was a blanket prohibition against obtaining any assistance for the furtherance of a candidate’s election from any person serving under the Government of India or a State, except for the act of giving a vote. The subsequent amendment, by contrast, narrowed the scope of the prohibition to apply only to the specified classes of officials enumerated in subsection seven.

The Explanation granted the Central Government the power to declare any individual serving under it as a person to whom the provisions would not apply. Consequently, in the absence of such a declaration, the provisions extended to every person employed by the Government of India. Clause (b) of the Explanation further broadened the definition of “any person serving under the Government of a State” by expressly including the persons listed therein and any other village officer, regardless of the title used, who was employed in that State. Nevertheless, the State Government was also empowered to declare that any such person, other than a village officer, would be exempt from the provisions. Thus, before the amendment, section 123(8) covered a very wide range, applying to every individual serving under the Government of India or a State unless a specific declaration excluded that person.

After the amendment, the scope of section 123(7) became considerably narrower. The amended provision applied only to persons in the service of the Government who fell within the classes specified in clauses (a) through (g), and to no one else. For the matters before this appeal, only clause (f) was relevant, as the other clauses could not possibly apply. The central issue therefore was whether a Sarpanch of a Grama Panchayat created under the Orissa Act was a person in the service of the Government of the State of Orissa and whether he belonged to the class described in clause (f) of section 123(7). Both elements had to be established; satisfying only one of them would not be sufficient for the provisions of section 123(7)(f) to attach to the Sarpanch.

The Court first needed to determine whether a Sarpanch of a Grama Panchayat under the Orissa Act could be said to be in the service of the State Government. To reach that conclusion, it was necessary to examine the provisions of the Orissa Act that related to the Grama Panchayat and the duties imposed on the Sarpanch, to see whether those provisions indicated that the Sarpanch performed his functions as a government servant. Absent any such indication in the statutory text, no material existed on which a finding could be based. The appellant contended that, under the Orissa Act, a Grama Sasan could be constituted by a notification issued by the State Government. The Act described the Grama Sasan as a body corporate with perpetual succession and a common seal, empowered to acquire, hold, and transfer property, to enter into contracts, and to do all other acts necessary for the purpose of carrying out the provisions of the Orissa Act and to sue or be sued in its corporate name.

The provision authorised the Grama Sasan to carry out the provisions of the Orissa Act, to sue and to be sued in its corporate name. It required that each Grama Sasan be associated with a Grama Panchayat, and that the functions of the Grama Sasan be exercised, performed and discharged by that Panchayat. The executive authority of the Grama Panchayat was vested in the Sarpanch who was elected under section 10 and who acted under the authority of the Grama Panchayat. The Act further stipulated that the Grama Sasan, in the manner prescribed, would elect from among its members an Executive Committee, which would be the Grama Panchayat, and that this Panchayat, also in the prescribed manner, would elect a Sarpanch. Consequently, the appointment of the Sarpanch did not originate from the Government. Instead, the Sarpanch was elected by the Grama Panchayat, which itself had been elected by the Grama Sasan. The Grama Sasan was composed of a village or a group of contiguous villages, and its members were the inhabitants residing in those villages. Because the appointment of the Sarpanch was not made by the Government, this fact was advanced as one of the factors supporting the conclusion that the Sarpanch was not a person in the service of the Government.

Section 8 required the Sarpanch to act under the authority of the Grama Panchayat, and prima facie this requirement was presented as another factor discounting the theory that a Sarpanch was in Government service. A further argument highlighted that the Sarpanch received no remuneration from the Government, which was asserted to be another element against the claim of service. Although section 16 gave the State Government the power to remove a Sarpanch, such removal could be exercised only for negligence, inefficiency or misconduct, and this limited power of removal was said not to be decisive on the question of service. It was therefore urged that three important considerations—how the person was appointed, whether the person acted under Government authority, and whether the person received Government remuneration—were all absent in the case of a Sarpanch. The limited power of removal, it was argued, could not be treated as conclusive. The counsel also referred to numerous Municipal Acts of various States where the State Government possessed the power to remove a municipal Chairman, yet it could not be said that the municipal members or the Chairman were in the service of the Government. On behalf of the respondent, it was contended that the expression “in service of Government” should be interpreted more widely than “serving under the Government”, that the performance of governmental functions would amount to being in Government service, and that a Sarpanch could be equated with officials such as a patwari, lekhpal, talati or karnam, making it unnecessary to decide whether the Sarpanch was in Government service because of the wording precedents.

The argument highlighted that the expression “belonging to any of the following classes” must be interpreted to mean “or” in the relevant provision. Counsel then cited several sections of the Orissa Act to demonstrate that a Sarpanch ought to be considered a person serving the Government. Section ten, subsection two, assigned the District Magistrate the responsibility to determine how the local area of any Grama Sasan would be divided into electoral wards and how many members each ward would return. Subsection four of the same section provided that the District Magistrate would also fix the total number of members constituting a Grama Panchayat. According to subsection six, if an election failed to produce the required number of members, the State Government was authorized to appoint individuals to fill the vacancies, after which the combined body of elected and appointed members would elect a Sarpanch from among themselves. Subsection eight empowered the State Government, by way of a notification issued for sufficient cause, to extend the term of any Grama Panchayat for an additional year. Clause eleven allowed the State Government, through a notification, to order a general election for the members of a Grama Panchayat, including its Sarpanch, at any time before the scheduled expiry of their terms. Section fourteen gave the State Government authority to resolve any dispute or difficulty arising from the interpretation of the Orissa Act, its rules, or any problem encountered in its administration. Section sixteen authorized the State Government to remove a Sarpanch on grounds of negligence, inefficiency, or misconduct. Section seventeen required a Sarpanch to implement the decisions of the Grama Panchayat, but mandated that if the Sarpanch believed a decision threatened peace, caused manifest injustice, targeted a particular community, or ran counter to public interest, he must refer the matter to the Sub‑divisional Magistrate and then act according to the Magistrate’s directions. Subsection two of the same provision empowered the Sub‑divisional Magistrate, either on his own initiative or upon representation by the Sarpanch, to set aside a Panchayat decision that fell within the categories described. Subsection three of section eighteen authorized the Sub‑divisional Magistrate to appoint any member of the Grama Panchayat to perform the duties of the Sarpanch until a new Sarpanch was elected following the resignation of the former. Section twenty‑two permitted a Grama Panchayat, if a majority of its members agreed and with prior approval of the Government and, when directed by the Provincial Government, to undertake within its jurisdiction the control and administration of matters listed in clauses a through y, including the subject of clause x.

In describing the powers and duties of a Grama Panchayat, the Court explained that the Panchayat could carry out any activity whose expenditure had been declared by the Provincial Government or by a District Board, provided the Provincial Government had sanctioned the expense as an appropriate charge on the Panchayat’s funds. The Court further noted that, for the purpose of appointing staff, Section 32 required the Panchayat to prepare a scheme outlining its proposals for employing either full‑time or part‑time personnel, together with the proposed salaries and allowances. This scheme had to be submitted to the prescribed authority, which possessed the power to approve, modify, or reject it. Section 35 dealt with the liability of members of the Panchayat, or of any Joint or other Committee formed under the Orissa Act, by allowing suits to be instituted against them for loss, waste, or misapplication of Panchayat property that resulted directly from their neglect or misconduct while serving as members of such bodies. Under sub‑section (3) of that provision, the Provincial Government could also institute such a suit on its own initiative. According to Section 36, all members of the Panchayat were deemed to be public servants, and for the purpose of defining “legal remuneration” in Section 161 of the Indian Penal Code, the term “Government” was to be interpreted as including a Grama Sasan or a Grama Panchayat. Section 44(2) authorized a Panchayat, with prior sanction of the State Government, to impose a tax, toll, fee, or rate on matters listed in clauses (a) to (n). Sub‑section (4) empowered the District Magistrate to review or revise any such tax, toll, fee, or rate, while sub‑section (5) allowed the District Magistrate, by a written order, to require the Panchayat to levy or increase any tax, toll, fee, or rate specified in sub‑section (2) if, in the Magistrate’s opinion, the Panchayat’s income was or might become inadequate to discharge properly the duties imposed by Section 21 or undertaken under Section 22. Section 97 gave the District Magistrate general powers of inspection, supervision, and control over the administrative performance of the Panchayat. Sections 98 and 99 conferred additional general and emergency powers respectively, enabling the District Magistrate, by a written order, to prohibit the execution or further execution of any resolution or order passed by the Panchayat. Under Section 117‑A, the State Government could delegate any of its powers, except the power to make rules, to any subordinate officer. The respondent, identified as No. 1, argued that these provisions of the Orissa Act clearly placed the Grama Panchayat under the control and supervision of the State Government, thereby rendering the duties performed by its Sarpanch as governmental duties.

The argument presented held that because the State Government exercised supervision and control over the Grama Panchayat, the duties and functions carried out by its Sarpanch ought to be regarded as governmental duties. It was further submitted that, in determining whether a Sarpanch could be characterized as a person ‘in the service of the Government’, the essential considerations should be the extent of control and supervision exercised by the State Government over the Sarpanch and the Government’s power to remove him from office. The submission emphasized that the mere fact that the Sarpanch was not appointed by the State Government, nor that his remuneration was paid by the State Government, could not be taken as factors indicating that he was not in the service of the Government. In the Court’s view, a distinction exists between the expressions ‘serving under the Government’ and ‘in the service of the Government’. While a person may serve under a Government, that does not automatically place him in the service of the Government; the latter expression implies not only service under the Government but also a master‑servant relationship. According to Batt in On the Law of Master and Servant, such a relationship requires two essential elements: (1) the servant must be under a duty to render personal services to the master or to others on the master’s behalf, and (2) the master must possess the right to control the servant’s work, either directly or through another servant or agent. Batt further explained, “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.” He illustrated that an independent contractor is not subject to the employer’s control in performing the work; the contractor must shape and manage the work to achieve the contracted result. Consequently, Batt noted, “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 indicate that, in relation to the State Government, the Grama Panchayat and its Sarpanch are bound by such a master‑servant relationship. It is true that the State Government, the District Magistrate and the Sub‑divisional Magistrate have been vested with certain powers of control and supervision over the Grama Panchayat; however, those powers relate only to the administrative functions of the Panchayat and the Sarpanch. The Grama Panchayat operates as an autonomous body exercising the functions conferred upon it by statute, and it cannot be said that, by exercising these functions, the Panchayat is in the service of the Government. Its administrative functions resemble those ordinarily performed by municipalities and district boards, which, despite being subject to governmental oversight, are not considered to be in the service of the Government.

It was observed that the fact that a municipality or a district board performs administrative duties and is, to some extent, subject to governmental control does not convert that body into an entity that serves the Government. The same principle applies to cooperative societies, which are normally placed under the supervision of the State Government or its authorized officers; nevertheless, such supervision does not transform the society or its members into agents of the Government. In a similar vein, legislation concerning companies increasingly grants the Government powers of control and supervision. For example, section 259 of the Indian Companies Act, 1956 provides that any increase in the number of directors must receive approval from the Central Government, and the increase becomes void if the approval is denied. Section 269 stipulates that the appointment of a managing or whole‑time director in a public company, or in a private company that is a subsidiary of a public company, shall have no effect unless it is approved by the Central Government, and the appointment becomes void if disapproved. Section 408 gives the Government authority to prevent mismanagement in a company, and, in lieu of passing an order under sub‑section (1), the Central Government may direct the company to amend its articles of association in accordance with section 265 and to make fresh director appointments within a time specified by the Government. Section 409 empowers the Central Government to block any change in the number of directors that might prejudice the company. Despite these extensive powers of control, it cannot be concluded that a company becomes a servant of the Government solely because of such statutory provisions.

The Court held that the mere power of control and supervision over a Grama Panchayat while it exercises administrative functions does not render the Panchayat or any of its members a person in the service of the Government. Even if the Panchayat performs duties that resemble governmental duties, this does not make its Sarpanch a government servant. The Sarpanch is merely the executive head of the Grama Panchayat, which carries out its functions through him; he is not appointed by the Government, he does not receive a salary from the Government, and he does not execute his functions as a person in the service of the Government. Consequently, the Sarpanch can be removed only on grounds of negligence, inefficiency, or misbehaviour, and no provision of the Orissa Act was found that would classify the Sarpanch as a person in the service of the Government.

In this case the Court observed that the Sarpanch performed his duties not as a person employed by the Government, and consequently his removal could be effected only on the basis of negligence, inefficiency or misbehaviour. The Court examined the Orissa Act and reported that it could locate no provision within that statute that described a Sarpanch as a government servant. The respondent identified section 31 of the Orissa Act, which permits a Grama Panchayat to contract with the State Government for the collection of any class of taxes or dues at a prescribed percentage as a collection charge. The Court noted that the Grama Sasan is a corporate body and that the Grama Panchayat functions as its executive authority; therefore, section 31 merely authorises the Panchayat to enter into such a contract. The provision does not impose any mandatory duty on the Panchayat to collect government taxes or dues, and no clause was presented that would enable the State Government to direct the Panchayat to perform that collection. Moreover, sub‑paragraph (b) of section 31 allows the Panchayat to contract with private land owners for the collection of rents, further indicating that the statute treats the Panchayat as an autonomous contracting entity rather than as an arm of the Government. The Court concluded that the existence of section 31 undermines the proposition that the Panchayat, and by extension its Sarpanch, were in the service of the Government, since such a provision would be unnecessary if the Panchayat were already obligated to obey Government orders for tax collection. The Court then considered the hypothetical scenario that a reasonable construction of the Orissa Act might deem the Sarpanch a government servant. Even under that assumption, the Court held that the Sarpanch would have to fall within the category of officers specified in section 123(7)(f). Clause (f) first refers to a person in the service of the Government who is a revenue officer and then extends the definition to include village accountants. The wording “such as patwaris, lekhpals, talatis, karnams and the like” serves only as a description of “revenue officers including village accountants”. Accordingly, to satisfy clause (f) a person must be either a revenue officer or a village accountant, irrespective of the title used. The explicit exclusion of all other village officers from the clause leads the Court to conclude that, for the clause to apply to a Sarpanch, it must first be established that the Sarpanch holds the position of a revenue officer or a village accountant. The mere authority under section 31 for the Panchayat to contract with the State Government does not transform the Sarpanch into either of those classes of officers.

The Court observed that the authority granted to a Grama Panchayat to collect taxes or other dues did not, by itself, convert a Sarpanch into a revenue officer. It was acknowledged that a Grama Panchayat might be required to supervise and maintain village and field boundary marks and to keep village records if the State Government imposed such a duty under section 21(r) of the Orissa Act. However, the Court noted that in the present case there was no proof that the specific Grama Panchayats involved had been directed by the Government to perform any such functions. The Court further pointed out that section 54(1)(xiv) of the Orissa Act created a position of chaukidar, appointed by the District Magistrate, whose statutory duty was to watch over boundary marks and to report any loss or damage of those marks to the Grama Panchayat. The Court emphasized that the Grama Panchayat itself had not been positively assigned any functions under the Act that were normally discharged by a revenue officer. Consequently, the provisions of section 21(r) alone could not transform a Sarpanch of a Grama Panchayat into a revenue officer. Likewise, the Court found no provision in the Orissa Act indicating that a Sarpanch was a village accountant. Respondent No. 1 had suggested that if a Sarpanch could be shown to be either a revenue officer or a village accountant, then the very fact of holding such a position would make the Sarpanch a person in the service of the Government. The Court expressed doubt that such a conclusion necessarily followed and, without further analysis of that submission, concluded that a Sarpanch under the Orissa Act was neither a revenue officer nor a village accountant. Accordingly, the Court held that the two essential elements required for the application of clause (f) of sub‑section (7) of section 123—namely, that the Sarpanch be a person in the service of the Government and that he belong to the class described in clause (f)—had not been established. The Court further stated that even if one of those elements were proved, the lack of the other would prevent section 123(7) from applying. The Court therefore concluded that the High Court had erred in assuming that because a Sarpanch performed governmental duties he must be regarded as a person in the service of the Government, and that the High Court had not made a clear finding that a Sarpanch, even if a government servant, was either a revenue officer or a village accountant. As a result, the Court held that the provisions of section 123(7) did not apply to the Sarpanch, that no corrupt practice under section 123 could be established, and that the election of the appellant could not be set aside on the sole ground relied upon by the High Court. The appeal was therefore allowed with costs, and the election petition filed by respondent No. 1 was dismissed.