B GANGARAM Vs. DISTRICT COLLECTOR PANCHAYAT WING ASIFABAD

JUDGEMENT

(1.) The President of Asifabad Panchayat Samithi, one Poshetti, died on 24-9-1981. His death caused a casual vacancy in the office of the President of the above Panchayat Samithi. Rule 44 of the Andhra Pradesh Panchayat Samithis (Conduct of Election of President, Panchayat Samithis) Rules 1979 issued in G. O. Ms. No. 142, Panchayat Raj dated 21-2-1979, mandates the election authority to fill up any such casual vacancy of election of a new President within one hundred and twenty days from the date of occurrence of such vacancy. Although the limit of one hundred and twenty days fixed by the aforesaid Rule 44 had expired by 23-1-1982, no election to fill up the casual vacancy caused by the death of the abovesaid Poshetti in the office of the President of Asifabad panchayat Samithi was conducted. The Present petitioner therefore filed this writ petition on 10-2-1982 for directing the respondents to conduct the election and (for) another relief which he had given up now.

(2.) In view of the undefined fact regarding the death of Poshetti on 24-9-1981 while in office, it is clear that a casual vacancy in the office of the President of the Panchayat Samithi had arisen. The abovementioned Rule 44 clearly applies to the above situation. That Rule 44 reads thus :

(3.) Rule 44 of the aforesaid Rules uses the word shall and imposes a mandatory duty upon the election authority to hold fresh election. It is a rule made under the Act and therefore contains the will of the legislature. The Executive has no option but to carry out the legislative mandate. Yet no election has so far been conducted for filling up the casual vacancy. The default on the part of the election authority amounts to defeating the legislative will which would be wholly impermissible under the rule of law we live by. Under our system of Government, the executive Government has no parallel source of power. It must do or die according to the dictates of the legislature. In this case, as the Legislature had directed the filling up of the casual vacancy within one hundred and twenty days, elections ought to have been held within one hundred and twenty days. Yet they were not held. I am, therefore, of the opinion that this is a fit case where this Court should issue a writ of mandamus to the respondents to conduct the election to the post of President of the Panchayat Samiti of Asifabad.