Shiv Dayal, J.
1. This is a petition under Article 226 of the Constitution challenging the election of Gopal Singh (Respondent No. 3) as Sarpanch of Gram Panchayat, Gadazar, district Gwalior.
2. On April 15, 1970, election of the Panchas of the Gram Panchayat was held. The petitioner was elected a Pancha. On August 5, 1970, a meeting for the election of Sarpanch and Up-Sarpanch was held, for which a notice had been issued on July 27, 1970, specifying the date, time and place of the meeting. The petitioner and respondent No. 3 were the contesting candidates.
3. The petitioner's contention is that the proceedings of the meeting were void inasmuch as the meeting was called by the Panchayat Inspector and not by the Chief Executive Officer, who was the prescribed authority under Section 19(1) of the Act, This contention is misconceived. The meeting was actually called by the Panchayat and Social Education Organizer (Panchayat Ewam Samaj Shiksha Sanghathak). He was the prescribed authority within the meaning of Section 19 (1) read with Rules 79, 77 and 78 of the Rules framed under Sections 12, 21, etc. For a detailed discussion see Bhotey v. Collector, Gwalior, Misc. Petn. No. 109 of 1970 = (reported in AIR 1971 Madh Pra 207). This contention is accordingly rejected.
4. The next contention is that the meeting was not validly held inasmuch as the petitioner received a notice of the meeting on July 31, 1970, for a meeting to be held and which was held on August 5, 1970. The argument is that the notice had to be of 5 clear days as required by Rule 78 (4) of the aforesaid rules. Learned counsel for Gopal Singh (respondent No. 3) contended that it was sufficient that the notice was despatched five clear days before the date of the meeting. Reliance was placed on Sheokumar v. Rajnandgaon Municipality, AIR 1964 Madh Pra 195 and Baboolal v. Municipal Council, Chhuikhadan, 1964 MPLJ 913 = (AIR 1965 Madh Pra 270). These decisions are not applicable to the present case. In those cases Section 47 of the M.P. Municipalities Act, 1961, was under consideration. Under that section a notice is required to be despatched 10 clear days before the date of the meeting. But Rule 78 (4) of the Rules framed under Section 21 (3) of the Panchayats Act, reads thus:--
"The notice shall be delivered five clear days before the date of meeting fixed and shall give the time, date, place and purpose for calling the meeting."
A notice to be valid under this rule must be "delivered" five clear days before the date of the meeting. It is not sufficient that it is "despatched" five clear days before the date of the meeting.
5. However, Learned Additional Government Advocate showed us from the original record the notice of the meeting. It was received by the petitioner on July 28, 1970, and not on July 31, 1970, as stated in the petition. We have seen the original record and we have shown it to the learned counsel for the petitioner. The contention is accordingly rejected.
6. It is then contended that the meeting for the election of Sarpanch was not held within the statutory period. The election of the Panchas was held on April 15, 1970, while the meeting for election of Sarpanch and Up-Sarpanch was held on August 5, 1970. The argument is that the first meeting of the Gram Panchayat under Section 21 of the Act ought to have been held on or before May, 15, 1970.
7. In our opinion, this argument is based on a misreading of Sections 19 and 21. The result of the election of Panchas is declared under Rule 71 of the Rules made under Section 12 of the Act. Section 19 of the Act is divided into two sub-sections. Under the first sub-section, a meeting is to be called of the elected members for the purpose of co-opting members as required by Section 11. This is the first meeting after the general election. But two things must be remembered: (1) this is the first meeting of the elected members only; and (2) it is called for the purpose of co-opting members as required by Section 11.
8. Sub-section (2) of Section 19 reads thus:--
"The first meeting shall be held within one month of the date on which the election, appointment or co-option, as the case may be, whichever was last declared."
Then Section 21 reads thus:--
"21 (1) Every Gram Panchayat shall at its first meeting elect from amongst its members a Sarpanch and an Up-Sarpanch.
(2) If the Gram Panchayat fails to elect a Sarpanch or an Up-Sarpanch in accordance with this section, the Collector may, by order, direct the Gram Panchayat to elect the Sarpanch or the Up-Sarpanch within the period specified therein and on failure of the Gram Panchayat to do so, appoint any person eligible under Sub-section (1) to fill the vacancy.
(3) The State Government may make rules for regulating the mode and time of election or appointment of the Sarpanch and the Up-sarpanch."
The Petitioner's contention is that the expression "first meeting" within the meaning of Section 21 is the same first meeting which is held under Section 19 (1). This argument disregards that the "first meeting" spoken of in Section 19 (1) is the "meeting" not of the Gram Panchayat but it is a "meeting" of the elected members only. It is obvious enough that the meeting under Section 19 (1) is called "of the elected members" for the purpose of co-opting members as required by Section 11, while the "first meeting" under Section 21 is the meeting of the Gram Panchayat, which means of all the elected, co-opted and appointed Panchas, not merely of elected members. Thus, the 'first meeting" under Section 19 (1) is different from the "first meeting" under Section 21 (1) of the Act.
9. Now Sub-section (2) of Section 19 relates not to the first meeting under Sub-section (1) of that section, but it relates to the "first meeting" to be held under Section 21 (1). This is quite clear because Sub-section (2) requires the "first meeting" to be held "within one month", while the "first meeting" to be held under Section 19 (1) must be held "as soon as may be after the general election." Here, general election means the election of the elected members. Thus, the first meeting under Section 19 (1) has to be held as soon as may be after the election of members. The period which is fixed under Section 19 (2) is for the first meeting of the Gram Panchayat to be held under Section
21. The second reason is that the first meeting under Section 19 (2) is to be held after the election, appointment and co-option and that meeting is to be held within one month from the date on which any of these "election, appointment or co-option" is last declared. From the scheme of Section 19, it is obvious enough that election must precede co-option. Therefore, the date of the declaration of co-option or appointment of members under Section 11, whichever is later, is the starting point for the period of one month prescribed under Section 19 (2).
10. As a result of the above discussion, we hold that Section 19 (2) of the Act applies to the first meeting of the Gram Panchayat under Section 21 (1), and not to the first meeting under Section 19 (1) of the elected members. It is at the first meeting of the Gram Panchayat at which the election of Sarpanch and Up-Sarpanch takes place and not the meeting under Section 19 (1). The contention is accordingly rejected.
11. It is next contended that the provisions in the aforesaid rules for giving a ballot paper to an illiterate person and requiring him to disclose to the Presiding Officer the name for whom he wants to vote, is contrary to the provisions for the maintenance of secrecy of votes and that this method of voting violates Articles 325 and 326 of the Constitution. In our opinion, this contention has no substance. Articles 325 and 326 of the Constitution are not in point at all. Rule 78 (17) prescribes the form of the ballot paper and Clause (18) of that Rule requires the Chairman to record vote on ballot paper in accordance with the wishes of the voter when the voter is unable through illiteracy, blindness or other physical infirmity to record his vote. The argument is that it is understandable that a person cannot put the mark 'X' against the name of a candidate for whom he wishes to vote by reason of blindness, but the same cannot be said of an illiterate person. To maintain secrecy, an illiterate voter also should not be required to disclose his choice to the Chairman. In our opinion, secrecy is to be maintained to the extent that is laid down in the rules. Even in case of an election, Rule 52 requires that if owing to blindness or other physical infirmity a voter is unable to read the symbol on a ballot box or is physically incapable of putting the ballot paper in to a ballot box, the presiding Officer shall enter the polling compartment with such voter, ascertain from the voter the candidate or candidates in whose favour he desires to vote and shall put the ballot paper or papers in the ballot box or boxes of such candidate or candidates. And, this is to be done with as much secrecy as is possible. It is an argument that in the case of a blind man some one has to help him in putting his ballot paper into the ballot box of such candidate in whose favour he desires to vote, but an illiterate person is not included in Rule 52. The reason is obvious. An illiterate person can vote by recognising the symbol of the candidate in whose favour he desires to cast his vote, but in the case of ballot paper for the purpose of co-option under Rule 78, a cross mark is to be made against the name of the candidate for whom the vote is cast. An illiterate person cannot do so because unless he is able to read the names of the candidates he cannot exercise his choice by putting mark 'X'.
12. The further argument is that Clause (17) of Rule 78 is itself void because it does not preserve secrecy which could be preserved by substituting the method of marking a ballot paper, by putting it into the box bearing a symbol. This argument appears to be plausible but the rules cannot be struck down, unless it is shown that they are in contravention of any provision of the Constitution or of any law. The rules themselves provide for secrecy and also the extent of secrecy.
13. We have no doubt that the authorities would consider an amendment of the rule so as to attain the object of secrecy to a greater extent.
14. This petition is accordingly dismissed. Parties shall bear their own costs. The outstanding amount of security deposit shall be refunded to the petitioner.