A Panchayat comes into existence after the oath of office is taken by the Panch and Sarpanch. A notification under Section 14 of the Rajasthan Panchayat Act, 1953 is not the sine qua non without which the Panchayat cannot come into existence.

WANCHOO, C. J.

( 1 ) THIS is an application by Dalelsingh under Article 226 of the Constitution challenging the holding of a by-election lor the office of Sarpanch of Gram panchayat of Samarthali on the ground that the seat of the applicant, who had elected barpanch in December 1955, had become vacant.

( 2 ) THE case of the applicant is briefly this. He was elected Sarpanch of the Gram panchayat of Samarthali in December 1955. The result of the election was notified in accordance with Section 14 of the Rajasthan Panchayat Act, 1953 (Act No. 21 of 1953) (hereinafter called the Act) on 16th of June 1956. The applicant says that thereafter he went to the Tehsildar to take the oath of office, as required by section 15 of the Act. He was then told that his seat had become vacant under section 17 (2) of the Act and a by-election had been ordered to be held in August 1956. Consequently, the applicant made the present application challenging the holding of the by-election on the ground that his seat had become vacant.

( 3 ) THE main ground on which the applicant contends that his seat had not become vacant is that the Panchayat can only come into being after the notification under section 14 has been issued and as this notification was issued in June 1956, he could not incur any disqualification if unauthorised meetings of the Panchayat were held between December 1955 and June 1956. He, therefore, prays that the Court should direct that his seat had not become vacant and that no by-election should be held.

3a. The application has been opposed on behalf of the State. The State contends that the provision of Section 14 of the Act is only directory and the Panchayat can function as such even before the names of the Panchas are published under section 14. It is also said that oath was administered to the applicant and other panchas by the Tehsildar on 9th of December 1955 immediately after the election. The Panchayat thus came into existence after the administration of the oath and was functioning thereafter and a number of meetings were held, The applicant was continuously absent from these meetings numbering more than five between 30th of January 1956 and 21st of May 1956 "without giving any information to the panchayat and, therefore, his seat became vacant under Section 17 (2) and consequently, by-election had to be ordered. It is also said that the reason why the applicant absented himself was that he had been arrested on 5-1-1956 in connection with Bhooswami agitation and was sentenced to imprisonment and was only released from Jail on 22-5-1956. Apparently, he sent no information from Jail to the Panchayat that he could not attend the meetings.

( 4 ) THE main question which falls for consideration in this case is whether a notification under Section 14 of the Act is necessary before a Pancnayat can start functioning. We may, in this connection, refer to the following sections of the Act:

"14. Every election or appointment of a Sarpanch, Upsarpanch and a panch shall be notified in the Rajasthan Gazettee in accordance with rules made under this Act.

15. Every Panch or Sarpanch shall, as soon as possible after his election or appointment, as the case may be, make in the prescribed manner the prescribed oath or affirmation of his office and, unless this is done, shall not perform any of his functions under this Act. 17 (2) If any Panch, Sarpanch or Upsarpanch during the term of his office, absents himself from five consecutive meetings of the Panchayat without giving information in writing to the Panchayat he shall cease to be such Panch, Sarpanch, or Upsarpanch and his seat shall become vacant. (3) If any Panch or Sarpanch fails to make the prescribed oath or affirmation of his office within three months from the date of notification under Section 14, his seat shall be declared by the State Government to have become vacant. "

( 5 ) WE may also here refer to certain rules which have a bearing on the point raised before us. R