KANHAIYA LAL CHOUDHARY Vs. ADDL DEVELOPMENT OFFICER

JUDGEMENT

(1.) THIS revision petition involves an important question of law as to whether a person appointed under Sub -section 3 of Section 13 of the Rajasthan Panchayat Act 1953 (in short 'the Act') to the vacancy of Up -Sarpanch till election/bye -election to the office of Sarpanch or Up -sarpanch is held can be removed by the State Government even if elections to the aforesaid office are not held within six months of his appointment and appoint any other Panch in his place ?

(2.) THE relevant facts are these : One Hemraj Singh under Sub -section (1) of Section 13 of the Act was elected as Sarpanch of Gram Panchayat, Kishanganj, District Kota. The said Hemraj Singh was elected as Pradhan of Panchayat Samiti.and therefore, Shri Gangaram Up -sarpanch of Gram Panchayat Kishanganj (elected under Sub -section (2) of Section 13 of the Act) was working as Sarpanch of the Panchayat. He was removed from the office of the Sarpanch on September, 17, 1984 by a vote of no -confidence. He is said to have filed a writ petition which is said to be pending in this Court and an order of maintenance of status -quo has been passed therein. The State Goverement by its order dated 24 -9 -1984, under Section 13 (3) of the Act, appointed the petitioner to the vacancy of the Sarpanch till such vacancy was filled by bye -election under Section 20 of the Act. The petitioner took charge as Up -Sarpanch on 31st October, 1984. He was removed by the State Government by order dated 25 -5 -1985 and in his place: in exercise of the powers under Sub -section (3) of Section 13 Shri Dhanna Lal was appointed in the vacancy.

(3.) I will revert to the question formulated at the beginning of this order. Section 2 of the Act is definition. Section 2 under Clause (3) 'Panch' means a member of Panchayat other than a Sarpanch, under Clause (9A) 'Sarpanch', means the Sarpanch of a Panchayat elected under Sub -section (1) of Section 13. It does not define an Up -Sarpanch. Sub -section (2) of Section 13 of the Act provides that 'every Panchayat shall have an Up -sarpanch who must be person able to read and write Hindi and shall be elected in the prescribed manner by the Sarpanch and the elected and co -opted Panchas as from amongst the elected and co -opted Panchas. Under Section 4, a 'Panchayat' consists of a Sarpanch, such number of Panchas, not being less than five or more than twenty as the State Government may determine, elected from amongst the qualified voters of the Panchayat, Panchas co -opted under Section 9 and associated members of Panchayat. Therefore, constitution of Panchayat without Sarpanch will not be legal and a Panchayat must have a Sarpanch. Sub -section (3) of Section 13 of the Act which is relevant for the purpose of the present case reads as under: If the electors of a Panchayat circle fail to elect Sarpanch in accordance with this section or if the Panchas fail to elect Up -Sarpanch the State Govt. shall appoint a person to the vacancy till such vacancy is filled up by election within a period of six months and the person so appointed shall be deemed to be duly elected Sarpanch or Up -Sarpanch, as the case may be. (emphasis added) Under Sub -section (4) of Section 13 a Sarpanch shall hold office during the term of the Panchayat and an Up -sarpanch as long as he continues to be a Panch of the Panchayat. Any bye -election in the event of the office of Sarpanch or Up -Sarpanch becoming vacant by any reasons what so ever, shall be held in the manner prescribed, i e. in the same manner in which the election to the office of a Sarpanch or Up -Sarpanch is held. Under Section 20, which deals with bye -election, any vacancy of the office of Sarpanch or Up -Sarpanch shall not be filled if the said term would expire within 6 months from the date of occurrence of such vacancies. No election for the office of Sarpanch or Up -sarpanch can be held as long as he continues to be a Pradhan of the Panchayat Samiti. Under Rule 57A of the Rajasthan Panchayat & Nyaya Panchayat Election Rules (in short Rules) 1960. As and when a bye -election of Up -Sarpanch becomes necessary Under Section 20 of the Act, Collector or an officer nominated by him in this behalf (may appoint any officer who) shall convene a meeting of Sarpanch and Panchas after serving on them notices specifying date, time and place of such meeting and the provisions of Sub -rule (1), (2) (3) and (4) of Rule 50 and Rule 57 shall apply so far as may be. It will be clear from the scheme of the Act and rules referred to above that there must be a Sarpanch in every Panchayat and in the event the Sarpanch is elected as a Pradhan of Panchayat Samiti or a Pramukh of Zila Parishad under the Rajasthan Panchayat Samiti and Zila Parishad Act, 1959, he shall nominally continue Sarpanch of Panchayat and hand over charge to the Up -Sarpanch who will thereafter act, subject to the provisions contained in Sub -section (4) of 13 section as Sarpanch for all practical purposes. It would be further clear that as and when a vacancy in the office of Sarpanch or Up -Sarpanch will take place a bye -election will take place within a period of 6 months. The State Government has powers under Sub -section (3) of Section 13 of the Act to appoint any person to fill the vacany of Sarpanch or Up -Sarpanch, as the case may till the election are held.