Non-compliance with statutory provisions for filling casual vacancy in the Gram Panchayat election

Shamsher Bahadur, J.

1. The petitioners, Tara Chand, Brij Lal and Ajit Singh who are members of the Gram Panchayat of Elenabad in Hissar district have challenged the election of Des Raj, the fourth respondent, as Sarpanch of the Gram Panchayat.

2. There is no opposition to this petition though at the time of its admission Mr. Jain accepted service for the fourth respondent. Neither the State of Haryana, which is the first respondent, nor the Gram Panchayat of Elenabad, the third respondent, is before us though they have been served. No written statement has been filed on their behalf either. Des Raj even is not represented before me at the stage of the final hearing of this petition.

3. According to the facts as disclosed by the petition, the election of the Gram Panchayat of Elenabad, took place in January, 1964, and the three petitioners, along with the fourth respondent, were amongst the members elected. One Krishan Kumar was elected as Sarpanch of the Gram Panchayat. Krishan Kumar did not have a very smooth time as a Sarpanch. At first he was suspended under Section 102(i) of the Punjab Gram Panchayat Act (hereinafter called the Act) by the Deputy Commissioner, Hissar, though his writ petition to this Court, Civil Writ No. 1141 of 1967, against this order, admitted on 9th of August, 1967, has still to be disposed of. Later, the election of Krishan Kumar in an election petition brought for this purpose has been set aside by the Prescribed Authority. Against the order of the Prescribed Authority passed on 7th of September, 1967, a writ petition was filed by Krishan Kumar (Civil Writ No. 2121 of 1967) and this was dismissed in limine on 4th of October, 1967.

4. As Krishan Kumar was suspended from the office of Sarpanch the charge of the registers and records of the Gram Panchayat was entrusted to the first petitioner Tara Chand. In this petition it is alleged that the Gram Panchayat held a meeting on 30th of December, 1967, and elected the fourth respondent as a Sarpanch of the Gram Panchayat for the unexpired portion of the term for which Krishan Kumar was elected. It is submitted on behalf of the petitioners that the Gram Panchayat had no warrant or jurisdiction to elect Des Raj in this manner.

5. Section 10 of the Act lays down the procedure for filling a casual vacancy. Under it :-

"Whenever a vacancy occurs by the death, resignation or removal of a Panch, or a Sarpanch, a new Panch or Sarpanch as the case may be, shall be elected in such manner as may be prescribed, and the person so elected shall hold office for the unexpired portion of the term for which the person in whose place he was elected would have otherwise continued in office."

Rule 40 of the Gram Panchayat Election Rules, 1940, has prescribed a procedure for filling casual vacancies, according to which :-

"Where a vacancy occurs among the elected members of the Panchayat by death, resignation or removal of any member and a new member is to be elected in his place in accordance with the provisions of Section 10, such election shall be held within 60 days of the occurrence of the vacancy in accordance with these rules."

It is strange that the statutory procedure has not been followed and the Gram Panchayat has chosen to act in a manner which is contrary to the provisions of the Act. It is also a matter of regret that the authorities have not chosen to resort to Section 11 of the Act which says that :-

"If for any reason a Sarpanch or a sufficient number of Panches are not elected or a casual vacancy is not filled within the time prescribed the prescribed authority may appoint the necessary number of duly qualified persons as a Sarpanch or Panch, as the case may be, and any such person shall hold office for the unexpired portion of the term for which the person in whose place he was appointed would have otherwise continued in office."

In other words, the vacancy which occurred by the setting aside of Krishan Kumars election should have been fille