Wanchoo, C.J.—This is an application by Dalelsingh under Art. 226 of the Constitution challenging the holding of a by-election for the office of Sarpanch of Gram Panchayat of Samarthali on the ground that the seat of the applicant, who had been elected Sarpanch in December, 1955, had become vacant.

2. The case of 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.XXI of 193) (hereinafter called the Act) on the 16th of June, 1956. The applicant says that thereafter he went to the Tehsildar to take the oath of office, as required by sec. 15 of the Act. He was then told that his seat had become vacant under sec. 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 sec. 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.

4. The application has been opposed on behalf of the State. The State contends that the provision of sec. 14 of the Act is only directory and the Panchayat can function as such even before the names of the Panchas are published under, sec. 14. It is also said that oath was administered to the applicant and other Panchas by the Tehsildar on the 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 continually 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 sec, i7 (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 the 5th of January, 1956 in connection with Bhooswami agitation and was sentenced to imprisonment and was only released from Jail on 22nd of May, 1956. Apparently, he sent no information from Jail to the Panchayat that he could not attend the meetings.

5. The main question which falls for consideration in this case is whether a notification under sec. 14 of the Act is necessary before a Panchayat 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 Gazette in accordance with rules made under this Act.

15. Every Panch or Sarpanch shall, as soon as possible after his election or appiont-ment, 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 sec. 14, his seat shall be declared by the State Government to have become vacant."

6. We may also here refer to certain rules which have a bearing on the point raised before us. Relevant part of R. 18 of th

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