RAM RAKHAN Vs. VISHWANATH AND OTHERS

JUDGEMENT

(1.) This is a petition under Art. 226 of the Constitution. The facts are that the petitioner and the first respondent were candidates for election to the office of Sarpanch of the Panchayati Adalat, Sahebnagar. At an election held on the 29th Sept., 1956, the first respondent was declared duly elected. Thereafter the petitioner filed a petition purporting to be under Secs. 12C and 12D of the U.P. Panchayat Raj Act challenging the election of the first respondent on the ground that he was less than 30 years of age. That petition was dismissed by the Sub-Divisional Officer by an order dated the 26th April, 1958. The Sub-Divisional Officer found as a fact that the first respondent was only 26 years of age at the date of the election, but he held that the question of age was not material as the validity of his election as a Panch had not been questioned. It is the correctness of that order which is at issue in this petition.

(2.) Now under Sec. 44 of the Act the Sarpanch is elected by the Panches from among themselves, and R. 85 of the Panchayat Raj Rules provides that a person shall not be qualified to be appointed a Panch unless, inter alia, he is 30 years of age or over. The argument for the petitioner is that the attainment of the age of 30 is therefore a necessary qualification for the election of a person as a Sarpanch and if, in fact, a Sarpanch is elected who is of a lesser age, his election can be set aside on that ground. For the respondent it is contended that the only qualification for a person being elected a Sarpanch is that he is already a Panch; Ram Rakhan (Petitioner-Applicant) and in my opinion this contention, some what surprising as it may appear at first sight, must prevail.

(3.) If the respondent is not entitled to be elected Sarpanch it can only be because he was not qualified to be elected a Panch. Sec. 12C of the Act provides however that the election of a person who may be appointed as a Panch of a Nyaya Panchayat shall not be called in question except by an application presented to the prescribed authority on one or more of the grounds specified in that section. This Court in the case of Shri Dharam Singh Vs. The District Magistrate, Mumffarnagar, 1958 A.L.J. R. 62 held that the terms of the Sec. are clear and that "the purpose and effect of it is to secure the elected candidate in his office for the period provided by law subject only to his election being declared invalid as a result of an election petition." The election of the respondent as a Panch is not challenged in the present case. Sec. 44 so far as it is relevant provides that