SHEAPUJAN BHAGATversusTHAKUR HEMBROM AND ORS.

A                            SHEAPUJAN BHAGAT
                                        v.
                        THAKUR HEMBROM AND ORS.

                              NOVEMBER 7, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

         Santai Parganas Tenancy (Supplementary Provisions), Act, 1949:

         Ss.4(ix) and 5- 'Khas Village '-Village headman-Appointment of-
C Village headman having resigned, the village became a 'Khas village' i.e.
    a village in which there is no headman-On the directions of Assistant
    Commissioner eleption was conducted and appellant was declared elected-
    The election was challenged and ultimately the High Court held that the
    appointment should be made as far as possible under the hereditary principle
    and in case the candidate in the line ofsuccession is unavailable, then the
D   election should be conducted-Held, in this case the question ofhereditary
    succession does not arise since the previous incumbent had voluntarily
    resigned-It would arise only when the incumbent dies and his successor is
    available; in such a situation, under the scheme ofthe Act, the headmanship
    is required to be given to his son-Appellant not being from the same
    village, cannot claim the right of appointment-Commissioner to hold a
E   regular election according to law.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1085 of
    !980.

F        From the Judgment and Order dated 28.11.79 of the Patna High
    Court in C. W.J.C. No. 4949 of I 978.

            A.K. Pandey for R.P. Singh for the Appellants.

            D.N. Goburdhan for the Respondent.
G
            The following Order of the Court was delivered :

         Though notice was sent to the legal representatives of the contesting
    respondents, the acknowledgment has not been received. Therefore, it
H   must be deemed to have been served.
                                      606
            SHEAPUJAN BHAGATv. THAKURHEMBROM                               607


       The only question for consideration is: whether the respondent shou:d A
be appointed as a headman under Section 5 of the Santai Parganas Tenancy
(Supplementary Provisions) Act, 1949 (Bihar Act 14 of 1949) (for short,
the 'Act') by virtue of hereditary right or by election? It is seen that the
village headman, by name Hari Hembrom, had resigned in 1950 as a
headman and, thereafter, no appointment of the headman was made. In
the meanwhile, the village has become khas village within the meaning of B
Section 4(ix) of the Act. Resultantly, when an application was made by
the Raiyats of the village, the Assistant Commissioner had directed to
conduct the election in which the appellant was declared the successful
candidate. When the respondent challenged the election before the authority,
a remand order was passed. The appellant filed a revision before the
Commissioner. The Commissioner accepting the contentions of the appellant C
set aside the order of appointment. When Writ petition was filed against
that order, the High Court by the impugned order had held that appointment
should be made as far as possible under the hereditary principle. In case
the candidate in the line of succession on hereditary principle is unavailable,
then the election requires to be done. The question, therefore, is : whether
 the view taken by the High Court is correct in law? Section 4(ix) defines D
"Khas village", as a village in which there is no mulraiyat (headman) nor
 for the time being any village headman irrespective of whether there was
 not previously a mulraiyat or village headman in the village. Section 5
 provides that on an application of a raiyat or of landlord of any Khas
 village and with the consent of at least two-thirds of the jamabandi E
 raiyats of the village ascertained in the manner prescribed, the
 Deputy Commissioner may declare that a headman shall be appointed for
 the village and shall then proceed to make the appointment in the prescribed
1nanner.

      The question then is : whether a person from different village can           F
contest the election for headman? It is seen that a reading of the provisions
does not indicate that a stranger to the village is intended to be elected as
a headman. In this case, the appellant is right that the principle of hereditary
succession does not arise since the previous incumbent, Hari Hembrom
had voluntarily resigned and, therefore, the question ofhereditary succession      G
does not arise. It would arise only when the incumbent dies and his successor
is available; in such a situation, under the scheme of the Act, the headmanship
is required to be given to his son. In this case, since Hari Hembrom had
already resigned vo:untarily, the question of hereditary succession does
not arise. Admittedly, the appellant is not from the same village. Therefore,
he cannot claim the right of appointment. The Commissioner, therefore,             H
   608                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A is directed to hold a regular election in accordance with the prescribed
   procedure and read with Section 5 of the Act.

          The appeal is accordingly disposed of. No costs.

   R.P.                                                 Appeal disposed of.