(Per F.I. Rebello, J.)

Rule. Heard forthwith.

2. The petitioner Nos.1 to 4 were the elected members of the Gram Panchayat known as Mangnoor @ Sawatwadi Gram Panchayat. They have resigned their membership. Respondent Nos.6 to 8 are the existing members. Elections to the Gram Panchayat were held in May, 2005. The strength of the Gram Panchayat consists of 7 members. The petitioner No.4 was elected as Sarpanch and respondent No.6 as Deputy Sarpanch. There were some dispute about the election of respondent No.6 as Sarpanch. On account of this dispute, respondent Nos.2 and 3 visited the village on 4.8.2006 and declared respondent No.6 elected as Deputy Sarpanch. The said declaration was made without calling the petitioners for the meeting and taking their opinion or votes of the petitioners and behind their back, thereby cancelling the earlier election of Sarpanch and Deputy Sarpanch.

The petitioners, in the circumstances, as set out above, tendered their resignation.

3. It is the case of the petitioners that total strength of the Panchayat consists of 7 members, out of which four members have resigned and consequently, as more than half the total number of seats have been vacant then Panchayat ought to have been dissolved. Instead, by order dated 21.11.2006, there is a direction issued to hold elections to the four vacant seats. It is submitted that there is no power to fill in the vacant seats. It is submitted that, considering section 145 (1-A) of the Bombay Village Panchayat Acts, 1958, hereinafter referred to as the Act, the order is illegal and consequently, liable to be quashed and set aside.

4. We may first note the provisions of section 145(1-A) which reads as under:-

“[(1-A) If more than half the total number of seats in a Panchayat have become vacant, the State Government may, by order in the Official Gazette, dissolve such panchayat.]” It is, therefore, clear that the power to dissolve is not mandatory but directory. The petitioners must, therefore, make out a case that the non-exercise of this power or discretion by the respondent-State is arbitrary and illegal.

5. We may consider some provisions of the Act to answer the issue as to whether there is no power in the Act to fill in the vacancy occasioned by resignation of a member/members.

Section 10 provides for constitution of Panchayat. The number of members is as provided therein. The minimum number has to be 7 and maximum not more than 17.

We may reproduce sections 11(2) (3) and (4) for the sake of discussion which reads as under:-

(1)................

(2) The election of members of panchayat or election to fill any vacancy shall be held on such date as the State Election Commission may appoint in this behalf.

(3) Notwithstanding anything contained in Section 10, if the vacancy of a member occurs within six months preceding the date on which the term of office of the members of the panchayat expires under Section 27, the vacancy shall not be filled.

(4) Such election shall be conducted in the prescribed manner].

A perusal of this section would make it clear that election of members of Panchayat or election to fill any vacancy shall be as the State Election Commission may direct.

Section 13-A provides that if a person is elected to more than one seat in a village panchayat, then unless, within the prescribed time he resigns all but one of the seats by notice in writing signed by him and addressed to the State Election Commission or any officer authorised by it, all the seats shall become vacant. Section 14 is the provision for disqualifications. Section 14-A provides for disqualification arising out of certain convictions and corrupt practices under the Act. Election petition as to whether a candidate was duly elected is provided by section 15.

6. From the above, it would be clear that during the term of office of the Panchayat, vacancies can arise in situations as set out earlier. Section 27 sets out that the members of a panchayat shall, save as otherwise provided in the