For a valid constitution of a panchayat, a minimum of two-thirds of the total number of members is required, irrespective of whether they are elected or nominated.

Headnote:
VILLAGE PANCHAYAT - VALID CONSTITUTION - NOMINATED MEMBERS - BOMBAY VILLAGE PANCHAYATS ACT, 1958 - SECTION 10 - INTERPRETATION - KEY LEGAL PRINCIPLE: For a valid constitution of a panchayat, a minimum of two-thirds of the total number of members is required, irrespective of whether they are elected or nominated.
Fact of the Case:

Elections to the village panchayat of Surgana, District Nasik, were held in May 1978, but only five out of eleven seats were filled. The Standing Committee nominated six members to fill the remaining seats, bringing the total to eleven. The petitioner challenged the validity of the panchayat and the nominated members' right to participate in its affairs.
Finding of the Court:

The court held that the panchayat was validly constituted and that the nominated members were entitled to take part in its affairs. The court interpreted section 10 of the Bombay Village Panchayats Act, 1958, to mean that the two-thirds minimum required for a valid panchayat could be made up of either elected or nominated members.
Issues: 1. Whether the panchayat was validly constituted despite the fact that only five out of eleven seats were filled in the election. 2. Whether the nominated members were entitled to take part in the affairs of the panchayat.
Ratio Decidendi: The court held that the panchayat was validly constituted because section 10(3) of the Act allowed for the nomination of members to fill vacant seats. The court also held that the nominated members were entitled to take part in the affairs of the panchayat because they were deemed to have been duly elected under section 10(3).
Final Decision: The court dismissed the petition, holding that the panchayat was validly constituted and that the nominated members were entitled to take part in its affairs.

JUDGMENT - S.C. PRATAP, J.:---In this petition under Article 226 of the Constitution, the petitioner challenges the very Constitution of the village panchayat of village Surgana, District Nasik, contending that (a) it is not a validly constituted panchayat under the provisions of the Bombay Village Panchayats Act, 1958, (hereinafter referred to as the Act) and (b) respondent Nos. 7 to 12 who are its nominated members are not entitled to take part in the affairs of the said panchayat.

2. Facts giving rise to this petition are as follows :---

3. The petitioner is a resident of the aforesaid village Surgana. The said village has a panchayat divided into four wards. Elections to this panchayat were held in May 1978. Ward No. 1 had two seats and Ward Nos. 2, 3 and 4 had three seats each-thus in all eleven seats. From ward No. 1 respondent No. 2 was elected, from Ward No. 2 respondent Nos. 4 and 5 were elected, from Ward No. 3 respondent No. 3 was elected and from Ward No. 4 respondent No. 6 was elected. Thus, though there were eleven seats, only five persons were declared elected, reason being that though there were nominations of other candidates (including the petitioner herein), their nominations were rejected as being invalid leaving in the contesting field only the aforesaid five persons. As the total of the elected persons viz., five, fell short of the total number of seats viz., eleven, the Standing Committee acting under sub-section (3) of section 10 of the Act, nominated, sometime in November 1978, respondent Nos. 7 to 12 as members of the panchayat. Soon thereafter the present petition was filed for reliefs indicated hereinabove.

4. Mr. Dudhat, the learned Advocate for the petitioner, contends that the impugned election held in May 1978 failed to result in a validly constituted panchayat as the said election failed to return the requisite number of candidates necessary to constitute a valid panchayat. He submitted that under section 10(1)(a)(i) of the Act, the maximum strength of the elected members of this panchayat was eleven and by virtue of sub-section (4) of section 10 of the Act, a minimum of two-thirds of the total number of members required to be elected was requisite for the valid Constitution of the panchayat. As the impugned election resulted in only five persons being returned as elected to the panchayat and as the said number fell short of the minimum two-thirds as required by sub-section (4) of section 10 of the Act, the panchayat was not validly constituted in law and its functioning would consequently be void ab initio. On the other hand, Mr. Saldhana, the learned Assistant Government Pleader for the State as also Mr. Kankaria, the learned Advocate for some of the contesting respondents, contended that on a proper construction of section 10, it is clear that for a valid Constitution of a panchayat, there should be at the relevant time a minimum of two-third of the total number of members thereof irrespective of whether the same are elected under section 10(1) and/or nominated under section 10(3).

5. After a careful consideration of the provisions of section 10 and having regard to the scheme underlining it, we are of the opinion that the more reasonable view to take would be that though two-third is the requisite minimum for the constitution of a valid panchayat, the said two-third can be made up of either elected and/or nominated members. All that is necessary for the constitution of a valid panchayat is that there must be at the relevant time a minimum of two-third members, irrespective of whether the said minimum consists of elected and/or nominated members. Consequently, if, as in the present case, election does not result in the return of the requisite minimum of two-thirds there is no bar on the Standing Committee nominating the rest-indeed, in such circumstances it becomes, under sub-section (3) of section 10, the duty of the Standing Committee to so nominate the rest.

6. Under section 10(1)(a), a pancha

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