The State Government's discretion to dissolve a Gram Panchayat under Section 145 (1A) of the Bombay Village Panchayats Act, 1958 should be exercised after considering all necessary aspects, and dissolution should not be mechanically ordered when other options, such as filling vacant seats through elections, are available.

1. Heard.

2. Leave to delete respondent No.6.

3. Rule. By consent of the learned counsel for the parties rule made returnable forthwith and the matter is taken up for hearing.

4. The petitioners challenge order dated 9th May 2008 passed by the Divisional Commissioner, Aurangabad dissolving the Gram Panchayat Babra, Taluka Phulambri,

District Aurangabad by exerciging powers under section 145 (1A) of the Bombay Village Panchayats Act, 1958.

5. The admitted position is that out of total 11 members 5 members had resigned. Out of the remaining members, one member was elected as member of Panchayat Samiti and another was elected to a seat of the Zilla Parishad. In the case of third member, he was disqualified on the allegation that after the cut off date he was blessed with third child. It is informed that against the disqualification order an appeal was preferred wherein order of status quo was already passed. Undisputedly on the date of the impugned order the strength of the village panchayat was of three members. The State Election Commission had declared election programme for two seats which had fallen vacant due to election of two members as members of the Panchayat Samiti and the Zilla Parishad. Writ Petition No.1414 of 2008 was preferred. By an order dated 28-2-2008 this writ petition was disposed of by directing the Divisional Commissioner to take final decision in accordance with law and accordingly the Commissioner passed the impugned order.

6. The learned counsel for the petitioner has placed reliance on the reported judgments (1) Shivaji Maruti Shingate v. State of Maharashtra, 2007 (5) Mh.L.J. 109 and (2) Jahangir Yusuf Qureshi v. State of Maharashtra, 2008 (3) Mh.L.J. 437 to support his contention that the provisions of Section 145 (1A) of the Bombay Village Panchayats Act, 1958 (for short, "the Act") are held to be directory and not mandatory. The Commissioner has, in effect, exercised his jurisdiction treating the same to be mandatory. It is the discretion of the State Government to dissolve the entire Gram Panchayat or to fill in the vacant seats. The said discretion was not exercised reasonably, keeping in view the purpose of the provisions of Section 145 (1A) and the reported judgments of this Court.

7. The learned Assistant Government Pleader Shri. P.M. Shinde supported the order passed by the Commissioner and submitted that it is a reasoned order and the same is in consonance with the spirit of the provisions of Section 145 (1A) of the Act.

8. Shri. Palodkar, learned counsel appearing for respondents Nos.5 and 7 to 12 submitted that the Commissioner had passed a reasoned order. It was decided to dissolve the Village Panchayat which discretion need not be interfered with by this Court in exercise of its writ jurisdiction. According to the learned counsel the functioning of the Gram Panchayat was brought to a standstill due to resignation of the members, therefore, it was found necessary to seek a fresh mandate from the people to constitute the Village Panchayat.

9. The provisions of Section 145 (1A) of the Act read thus:

"145 (1A) 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." The issue was considered by this Court in the reported judgments cited supra.

10. The principle underling exercise of powers under section 145 (1A) is that though the statute provides that in case more than half of the members of the Gram Panchayat resign the State Government shall not exercise powers of dissolving the Gram Panchayat mechanically. It is obvious that the State is not bound to dissolve Panchayat unless situation is created where the functioning of the Panchayat is brought to a standstill. For assessing this situation an element of discretion is vested in the State which is required to be exercised after considering all the necessary aspects of the situation, the ground realities and the mechanism for effectiv