Co-option of a woman member to a Panchayat under Section 15 (4) of the Tamil Nadu Panchayats Act (XXXV of 1958) is an election and can only be challenged through an election petition.

VEERASWAMI, C. J.:- This appeal is directed against an order of Ramaprasada Rao, J. who held that co-option of a woman member to a Panchayat under the provisions of the Tamil Nadu Panchayats Act. (XXXV of 1958) is an election, though it took the form of a resolution of the Panchayat. On that view, he held that Inspector of Panchayats acted in excess of his jurisdiction under Section 147 of the Act in rescinding the resolution. We find ourselves in agreement with this decision of the learned Judge.

2. This case relates to Pechikulam Panchyat, Madurai Dist. The Panchayat had a strength of seven, each of whom was elected. But there was no woman among them. In accordance with Section 15 (4), the first respondent was by a majority resolution of the Panchayat at a meeting held on 25-9-1970, co-opted. On a complaint made by one of the members the Panchayat, the Inspector, in exercise of his powers under Section 147 cancelled the resolution on 29-12-1970. The ground was that there was a fraudulent counting of the votes on the resolution. We are not at the moment concerned with this aspect. The aggrieved co-opted member successfully petitioned to this court order Art.226 of the Constitution, Ramaprasada Rao J. holding that the proper remedy for any aggrieved member against a resolution was to file an election petition and not to have it rescinded by the Inspector under Section 147.

3. On the character of such co-option, we find a degree of divergence of opinion in this court. In Govindasami v. Palanisami, (1964) 77 Mad LW (SN) 56; U. K.N. Raju v. Nacharammal, (1964) 77 Mad LW 452 and Manammal v. Sesha Mudaliar, 1968-1 Mad LJ 94, which was a decision of Ramaprasada Rao J. himself, the view taken was that because there is no positive indication in Section 15 (4) co-option did not involve a process of election and it was therefore competent for the Inspector to rescind it as any other resolution of a Panchayat. In the first of these cases, Anantanarayanan J., as he then was, partly derived support from an old Government Order, which was not statutory. Srinivasan J. in the second case, contented himself by confining himself to the language of sub-section (4) of Section 15. He thought that whereas the other provisions in the Act indicated election of members, sub-section (4) of Section 15 did not necessarily connote the elective process. Ramaprasada Rao J. in the third case merely followed the earlier decisions. Gokulakrishnan J. in C. R. P. 1119 of 1971 (Mad), Shanmugavadivu Anmmal v. K.V. Subramaniam reviewed these cases, but considered that in view of the rules framed under Section 178 (1) relating to co-option, he should think that co-option amounted to an election. Ramaprasada Rao J. in the instant order out of which the appeal before us arises concurred with him.

4. As we indicated, in our opinion, the later view is the correct one and we would be prepared to hold so even without the rules. Section 14 contemplates a Panchayat to be as elected body, for it says the members of the Panchayat shall be elected in the manner prescribed. The proviso to this section is rather significant because a co-opted member for purpose of this section is also regarded as one among the elected members. The statutory understanding through Section 14 itself is that co-option involves election and the member co-opted is an elected

member of the Panchayat. Nowhere in the Act do we find any justification that a Panchayat member is ushered into the Panchayat otherwise than by election which need not necessarily be always by the same kind of process. Section 15 deals with a variety of matters which include reservation of seats for members of the Scheduled Castes, Scheduled Tribes and co-option of women. The last item 1 to wit, co-option of women would arise only if the Panchayat as elected does not happen to have a woman member. In that case, the Panchyat is enjoined, it is indeed entitled, to co-opt to itself one qualified woman. When it speaks of Panchay