1. By this present petition yet another proceeding relating to the election of the Panchayat Samiti under the provisions of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, is under challenge.
2. The Mehkar Panchayat Samiti in district Buldana is being constituted and there are 8 members to be elected under Section 57 (1) (f) of the Act, two each from four electoral colleges, one being Dongaon. The primary members are the panchas elected or continued as such of the village Panchayats existing in each Electoral College. It is the complaint of the petitioners that there are elected panchas from Gohogaon Gram Panchayat. The process of new elections or the Gram Panchayat, Gohogaon, has started but yet is not complete because of the stay order issued by this Court, relating to the elections of Wards Nos. 2 and 3 of the said Gram Panchayat. It is stated that Gohogaon Gram Panchayat has been divided in 4 wards. The petitioner No.1 was holding the office of the Panch even before the present elections and has been now elected from Ward No.1 of Gohogaon. The other three petitioners are now elected from wards Nos.1 and 4 and were not holding offices of the panchas prior to this election.
3. It is the contention of the petitioners that the Returning Officer and the Votes Registration Officer published a list on 12-7-1972 for the purposes of holding the elections to the Panchayat Samiti, Mehkar as far as Dongaon Electoral College was concerned. Surprisingly, however, he omitted to include the Gohogaon Gram Panchayat and the members thereof. It is contended that this itself vitiates the list as it affects the vested rights of voting, as well to be the candidate. The Roll thus being incomplete, no elections can be validly convened or held.
4. The voters' list for the purpose of such election has to be prepared under the provisions of the Rules called the Maharashtra Panchayat Samitis (Registration of Voters and Conduct of Election) Rules, 1962. It indicates that members of every Gram Panchayat are entitled to be included in that list. The provisions of Sections 27 and 28 92) of the Bombay Village Panchayats Act, 1958 indicate the tenure of these members. These provisions have been recently interpreted by us in Special Civil Appln. No. 831 of 1972 = (reported in : AIR1973Bom53 ), Khushal v. Collector of Bhandara and we have held that by virtue of Section 28 (2) of the Act unless the newly elected members as per the requirement of subsection (1) of Section ***** upon their office, the old members of the Panchayat continue to hold their office and, therefore are entitled to be included in the list of the Electoral College for the purposes of elections of the Panchayat Samiti. If that be the position, which is apparent in terms of Section 28 (2) of the Bombay Village Panchayats Act, we fail to see how the present list was prepared without including any names from the Gram Panchayat, Gohogaon. AT the Bar there was no justification put forward as to the validity of the said list as far as omission of the Gohogaon Gram Panchayat is concerned.
5. It is of essence that the list which is a basis of elections from an Electoral College is properly prepared. Gohogaon Gram Panchayat have a valuable right as far as the Electoral College is concerned. Though the process of election of Gohogaon Gram Panchayat might have begun and might not have been completed that does not postulate that there is any interregnum as far as the offices of the members of the Gram Panchayat are concerned. The provisions of Section 27 which speak of tenure and the provisions of the Section 28 (1) clearly show that the tenure has to begin from the date of the first meeting of the newly elected members and is to end a day prior to the date after the succeeding general election and the first meeting of the elected members in such an election. The provision of Section 28 (2) of the Bombay Village Panchayats Act is in terms based on the principle that the corporate office of the member should always be full and that no vacancy is postulated. The section recognizes that the well-known principle that there is a continuity and succession in the corporate life. Thus, it is not conceivable that though the offices are held by the members of the Gram Panchayat, they should be deprived of the valuable rights of being voters of contestants at the elections of the Panchayat Samiti.
6. We have, therefore, to hold that the action of the respondent No.2 in excluding the name of the Gohogaon Gram Panchayat and the names of the existing members as contemplated by Section 28 (2) is not valid in law.
7. In the result a writ of mandamus shall issue to respondents Nos. 1 and 2 to include the name of the Gohogaon Gram Panchayat and also the names of the Members of the said Panchayat as indicated above. After doing this alone, the respondent No.1 shall take further steps to notify the elections from the Dongaon Electoral College of Panchayat ***** will have right to get themselves nominated on the basis of the list so prepared and to take part in the process of election.
8. The rule in these terms is made absolute. The respondents 1 and 2 to pay costs to the petitioners.
9. Rule made absolute.