1. By this petition, under Articles 226 and 227 of the Constitution, the two petitioners seek quashing of the order of the Returning Officer, Lakhandur Electoral Division, rejecting their nomination papers and also desire setting aside of the election of respondent No. 7 Girija Kumar Saksena as Chairman of the Lakhandur Panchayat Samiti.
2. Respondent No. 1, N.D. Rahate, Additional Tahsildar, Sakoli, was appointed as Returning Officer at the election of members of the Panchayat Samiti in the Lakhandur Block 'which was divided into three electoral divisions, namely, Lakhandur, Choras Sarandi, and Kilaki Palandur. The petitioners filed their nomination papers according to rules within the time fixed in the election programme. Bach petitioner has filed a copy of his nomination paper. The copies of the nomination papers would show that each of the petitioners had given the serial number of the roll and also the name of the Gram Panchayat in which their names were recorded. Along with the petition, the petitioners have filed the relevant entries from the voters' lists for the Lakhandur Electoral Division in the Lakhandur Block. Respondent No. 1 rejected the nomination paper of petitioner No. 1 observing-
Rejected as the full name of the candidate to that of the Gram Panchayat filled in by the candidate in form, overleaf, do not agree with those mentioned in the voters' list.
This order is not supported by the contesting respondents, A bare perusal of the voters' list and the nomination paper would show that the reasons given by the Returning Officer are not correct and no fault could be found with the nomination paper on the grounds mentioned in this order. It is thus clear that the rejection of the nomination paper of petitioner No. 1 was not sustainable and is accordingly set aside.
3. In the case of petitioner No. 2 also, the Returning Officer has rejected the nomination paper on the ground that the full name of the candidate filled in by him in the form overleaf did not agree with that mentioned in the voters' list and thus a breach of Rule 16(5) of the Maharashtra Panchayat Samitis (Registration of Voters and Conduct of Elections) Rules, 1962, is alleged to have been committed. This order is also not supported by any of the contesting respondents and could not be supported. A bare perusal of the nomination paper will show that there is no such defect in the nomination paper. This order rejecting the nomination paper of petitioner No. 2 is also unsustainable and is accordingly set aside.
4. The nomination papers of the two petitioners were rejected by the Returning Officer on July 19, 1967. This petition was filed on July 24, 1967 and at that stage, the petitioners had prayed for staying the elections from the Lakhandur Block from which the petitioners had filed their nominations. This petition was admitted on July 27, 1967 and stay in terms of the prayer clause was also granted. It is now an admitted position that even though the prayer in prayer Clause (ii) asked for stay of elections in the Lakhandur Block No. 49, which comprises of three electoral divisions, actually the stay issued operated only in respect of the elections in the Lakhandur electoral division, and elections in this division have not been held. Similarly, in another batch of petitions which have been disposed of earlier more or less on the same grounds, the elections in the Choras Sarandi electoral division have also been stayed and have not been held. The result of the stay order thus has been that no elections under Section 57(1)(f) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (V of 1962) (hereinafter referred to as the Zilla Parishads Act), have been held in the electoral divisions of Lakhandur and Choras Sarandi, each of which are entitled to send two representatives as members of the Panchayat Samiti, Lakhandur, from amongst the panchas of the panchayats in these divisions.
5. After rule was issued in this case, the petitioners filed Civil Application No. 1257 of 1967 on August 17, 1967 because of a certain subsequent development which had taken place. Inasmuch as there was no stay of elections from the Kilaki electoral division, elections were held in that division on July 31, 1967. Respondent No. 1 thereafter called a meeting of the Lakhandur Panchayat Samiti which was held on August 7, 1967. At this meeting, it was alleged that respondents Nos. 7 to 11 were present and they proceeded to elect respondent No. 7, Girija Kumar Saksena, as Chairman of the Lakhandur Panchayat Samiti. The petitioners, therefore, sought amendment of their petition which was allowed by order of this Court on August 21, 1967. By this amendment, respondents Nos. 7 to 11 have been impleaded as respondents to this petition. The petitioners have added paras. 9(a), (b) and (c) to the main petition in which the petitioners challenge the validity and legality of the meetings held on August 7, 1967 and the election of respondent No. 7 as Chairman of the Panchayat Samiti at that meeting. As a consequence, the petitioners have also prayed by way of amendment that the proceedings of the meeting held on August 7, 1967 by respondent No. 1 should be quashed and the election of respondent No. 7 should be held as invalid and inoperative.
6. The newly added respondents as well as respondent No. 1 have filed a return to this petition and the petition has been posted for early hearing at the instance of the petitioners.
7. So far as the initial prayers of the petitioners are concerned, we have already indicated that the rejection of the nomination papers of each of the two petitioners was wholly unjustified and could not be upheld. Accordingly, we set aside the orders rejecting the nomination papers of .petitioners Nos. 1 and 2, and direct that the nomination papers be treated as valid so as to enable the petitioners to contest the election.
8. But the additional prayer which is now sought to be made by the petitioners has raised considerable debate before us on either side. In order to understand the submissions in support of this prayer and in opposition, it is necessary to give a brief resume of the different provisions of the Maharashtra Zilla Parishads and Panchayat Samitis Act, which are called for construction and decision in this case. Section 9 of the Act provides for constitution of Zilla Parishads. The Zilla Parishad is to consist of Councillors of different categories and it is only the Councillors in category (a) i, e. Councillors chosen by direct election from electoral divisions in the District, after whose election and publication of names, the Zilla Parishad is to be deemed to be duly constituted under Sub-section (2) of Section 9. Under Section 11, the term of office of the Councillors elected at a general election shall be deemed to commence from the date of the first meeting of the Zilla Parishad, and this meeting of the Zilla Parishad is enjoined to be held under Sub-section (2) of Section 11, on such date as may be fixed by the Collector but such date must be within twenty-five days from the date on which the names of the elected Councillors are published under Sub-section (2) of Section 9. There is no provision in this section for adjournment of this meeting of the members of the Zilla Parishad: which is called the first meeting. Section 14 empowers the Collector to fix a date or dates including a date for holding a fresh election under Sub-section (2) of Section 27. The only obligation that is imposed on the Collector in fixing the date is that such date shall not be earlier than four months before the date of the expiry of the term of the Zilla Parishad when the new general election is to be held, and the extreme limit is that such date shall not be later than 15 days before the date of such expiry. In other words;, the elections of the Councillors to the Zilla Parishad are required to be held within four months of the date of expiry of the term but not later than a fortnight before the date of the expiry of such term.
9. Chapter III of the Zilla Parishads Act makes provision for constitution of Panchayat Samitis. In this petition we are concerned with the constitution of the Panchayat Samiti at Lakhandur. Section 56 prescribes that for every Block there shall be a Panchayat Samti. The word 'Block' has been defined in Section 2(3) as such local area in a District as the State Government may constitute to be a Block under Section 5. Now, every such Block is further subdivided into electoral divisions. For instance, in the Lakhandur Block, there are three electoral divisions. The constitution of Panchayat Samitis is provided in Section 57, and it comprises of as many as five different categories of members who are members of the Panchayat Samiti as distinguished from Councillors who are members of the Zilla Parishad. Out of the several categories of members comprising a Panchayat Samiti, there is only one category of members, namely, those under Section 57(1)(f) who are directly elected members from electoral divisions. Under that clause, two members are to be elected from each electoral division included in the Block and the electoral college for such election are the members of the panchayats functioning in such electoral division and they have to send a member from amongst themselves. Thus, it is only a member of the Gram Panchayat who can be elected a member of the Panchayat Samiti and the persons who so elect are also only the members of the Gram Panchayats within the electoral division. In addition to these elected members, there are certain ex-officio members such as those in Section 57(1)(a), namely, all Councillors who are elected to the Zilla Parishad from the electoral divisions included in the Block. Thus, so far as the Lakhandur Block is concerned, all the Councillors elected to the Zilla Parishad from the Lakhandur Block from the three electoral divisions comprising it will be ex-officio members of the Panchayat Samiti of Lakhandur, We may notice one other category of members of the Panchayat Samiti provided in Section 57(1)(c). The Chairman of such co-operative society conducting exclusively the business of purchase and sale of agricultural products in the Block, as the State Government may by order specify in this behalf is also entitled to be a member of the Panchayat Samiti but only as an associate member. The right of an associate member is limited, inasmuch as he cannot vote at an election, though he can attend such an election and participate in the deliberations.
10. Sub-section (3) of Section 57, on which considerable reliance is placed in the arguments before us, needs to be quoted in extenso. That sub-section is as follows:
(3)(a) The names of members falling under Clause (i) of Sub-section (1), (together with their permanent addresses) shall be published by the Collector at such time, and in such manner, as may be prescribed; and upon such publication the Panchayat Samiti shall be deemed to have been duly constituted :
Provided that, such publication shall not be deemed-
(i) to preclude the completion of the election in any Block, or
(ii) to affect the term of office of the members of the Panchayat Samiti under the Act.
(b) The names of members falling under Clauses (a), (b), (c), (d) and (e) of Sub-section (1) (together with their permanent addresses) may also thereafter be likewise published by the Collector.
11. It will be seen that the names of the elected members under Clause (f) of Section 57(1) are required to be published by the Collector at such time and in such manner as may be prescribed. The State Government, in exercise of this power, have made rules called the Maharashtra Panchayat Samitis (Registration of Voters and Conduct of Election) Rules, 1968, and Rules 59 and 60 thereof are germane so far as the requirement of the publication of names of members is concerned. Under Rule 60, on receipt of the declaration under Rule 29 i.e. where there is no contest or if there is only one contesting candidate, or on receipt of the election returns 'under Rule 59, the Collector is required to publish the names of all the members of the panchayats and of Executive Committees elected to the Panchayat Samiti with their permanent addresses and the names of the electoral divisions from which they are elected by affixing a notice on his notice board. The importance of the publication of the names of elected members under Section 57(I)(f) is that on such publication of names, a fiction is created that the Panchayat Samiti is to be deemed to be duly constituted thereby.
12. Then follows Section 67 which makes provision for the procedure to be followed for election of Chairman of Panchayat Samiti. That section is as follows:
67. Procedure for election of Chairman of Panchayat Samiti. (1) After a general election under Sub-section (1) of Section 10 and Sub-section (2) of Section 57, the Collector or any officer authorised by him by general or special order, shall, at least three days before the date fixed for the first meeting of the Parishad under Sub-section (2) of Section 11, call upon the persons falling under clauses (a), (c) and (f) of Sub-section (1) of Section 57, to elect a Chairman of the Panchayat Samiti.
(2) The Chairman elected under Sub-section (1) shall be entitled to attend the first meeting of the Parishad called under Sub-section (2) of Section 11 as ex-officio Councillor, and as soon thereafter as possible take charge of office of Chairman of the Panchayat Samiti from the outgoing Chairman.
(3) The meeting called under Sub-section (1) shall be presided over by the Collector or the officer authorised by him as aforesaid. The Collector or such officer shall, when presiding over such meeting, have the same powers as the Chairman of a Panchayat Samiti when presiding over a meeting of the Panchayat Samiti has, but shall not have, the right to vote :
Provided that notwithstanding anything contained in Section 118, the Collector or such officer may, for reasons recorded in writing which in his opinion are sufficient, refuse to adjourn such meeting, or as the case may be, adjourn such meeting.(4) If in the election of the Chairman there is an equality of votes, the result of the election shall be decided by lot to be drawn in the presence of the Collector or officer presiding in such manner as ho may determine.
(5) Nothing in this section shall be deemed to confer on an associate member a right to vote at any such election.
13. It may be mentioned that under Section 66, the Chairman of the Panchayat Samiti shall, notwithstanding the expiration of his term, continue to carry on such current administrative duties of his office as may be prescribed by rules made by the State Government, until his successor enters upon his office. These duties are prescribed by the rules made by the State Government by a notification dated April 19, 1963. Among other duties which can be carried on, such a Chairman is empowered to convene a meeting of the Panchayat Samiti and to preside over such a meeting and do certain other acts provided in Section 76.
14. It may now be necessary to notice only one more section, namely, Section 68, under which in the first meeting of the Panchayat Samiti called by the Chairman, i.e. the Chairman elected under Section 67, members required to be co-opted under Section 57 are to be co-opted and in the next meeting of the Panchayat Samiti held thereafter, the Deputy Chairman is to be elected.
15. In the instant case, the petitioners' grievance is that a meeting of the Panchayat Samiti could not have been validly or properly called or held by respondent No. 1 to elect an office-bearer like the Chairman of the Panchayat Samiti because firstly all the members required to be returned as elected members under Section 57(1)(i) were not elected, the elections in two of the three electoral divisions having been stayed, by the Court. It is contended that under the scheme of the Act, the primary basis for constitution of the Panchayat Samiti is the category of members elected under Section 57(1)(f). The Act does not, therefore, contemplate ordinarily that a meeting under Section 67(1) should be held or could be held until the completion of the election of these members under Section 57(1)(f). If, for any reason, the elections are stayed or cannot be held, then it is necessary that such a meeting which is- an important meeting for election of an important office-bearer like the Chairman of the Panchayat Samiti, should not be held. At such a meeting are to be called members in the category under Section 57(1)(a) and also the Chairman under the category in Section 57(1)(c), in addition to members elected under Section 57(1)(f). If the presence of every one of these categories of members is required to be ensured, then Section 67 has to be so construed as to defer the calling of this meeting for election of the Chairman of the Panchayat Samiti till such date as all the elections under Section 57(1) are completed. In the instant case, it is not disputed that elections were held only in one electoral division out of three, the elections in the other two divisions being stayed by the Court, and out of six persons who were entitled to represent this class of members only two were present and could be invited for such a meeting.
16. As against this contention, the contesting respondent, namely, respondent No. 1, has urged that on a true construction of the scheme of Section 67, it was incumbent on the Collector or his nominee to call a meeting of the members of the Panchayat Samiti within three days of the date fixed for the first meeting of the Zilla Parishad. In the instant case, such a meeting of the Zilla Parishad was fixed for August 12, 1967 under Section 11(2) of the Act and respondent No. 1 was therefore bound to convene a meeting of such members as Were available or eligible to vote or participate within three days of that meeting, and therefore the meeting called on August 7, 1967 was according to law and as provided by the statute. As a further limb of the argument, reliance is placed on proviso (1) to Sub-section 3 (a) of Section 57 which permits the Collector to complete the process of election even after publication of the names of the members of the Panchayat Samiti elected under Section 57(1)(f). In other words, what is contended is that even if for any reason, elections in any of the constituencies comprising members to be returned under Section 57(1)(f) are not held or cannot be completed, such non-completion of election process in some of the constituencies will not prevent the Panchayat Samiti from being considered to be duly constituted if the results of election of such members under Section 57(1)(f) as are available are duly published according to rules. As soon as the results are published in respect of members elected under Section 57 (1)(f), whether or not the election pertains to all the constituencies or a few of them only, the argument runs in the eye of law the Panchayat Samiti must be held to be duly constituted. If the Panchayat Samiti is to be held duly constituted even fictionally, then in such circumstances there is no impediment in the 'Collector or his nominee like respondent No. 1 calling a meeting for election of Chairman of such Panchayat Samiti in obedience to the mandate of the statute under Section 67(I) of the Zilla Parishads Act. It is also urged that such a meeting is required to be called prior to the first meeting of the Zilla Parishad, because the person elected as Chairman of the Panchayat Samiti at such a meeting is alone entitled to attend the first meeting of the Zilla Parishad called under Sub-section (2) of Section 11 as ex-officio Councillor; and it is only thereafter, as soon as possible that such Chairman takes charge from the outgoing Chairman. As an ex-officio Councillor of the Zilla Parishad, such elected Chairman of the Panchayat. Samiti is entitled to compete for office in the Zilla Parishad, for he is an elected Councillor in his own right, and this valuable right is lost if the meeting is not held within three days of the date fixed for the first meeting of the Zilla Parishad.
17. In our opinion, it is not possible to accept the contention urged on behalf of the contesting respondent that the Collector or his nominee is entitled to call a meeting for election of Chairman of the Panchayat Samiti normally even though all the members required to be elected under Section 57 (I)(f) have not been elected. A careful personal of the different provisions of Chapter III regarding the constitution of a Panchayat Samiti will show that the Legislature has attached great importance and given an enhanced status to these members of the Panchayat Samiti who come in by elective process. Even though members of the category specified in, Section 57(1)(a) come by elective process, they are elected not directly to the Panchayat Samiti, but they are elected as Councillors to the Zilla Parishad. It is only by reason of their holding office of Councillors of the Zilla Parishad from that territory that they become ex-officio members of the Panchayat Samiti, The emphasis in Sub-section (3) of Section 57 on the provision that upon the publication of the names of members falling under Clause (f) of Sub-section (i) of Section 57, the Panchayat Samiti shall be deemed to be duly constituted only points out that the basis of constitution of the Panchayat Samiti is the elected members. By a recent amendment, the electoral college from which these members get elected has been extended to include the members of the Executive Committee constituted under the Maharashtra Gramdan Act, 1964. The fiction that is introduced by proviso (i) to Sub-section (3) is for a specific purpose and that purpose is to enable the Collector to complete the election in certain contingencies. 'What these contingencies are is not stated in the provisions of the statute but can very well be found out from the rules.
18. Now, the rules framed in exercise of the powers under this Act under Section 274 are required to be laid before each House of the State Legislature as soon as may be after they are made, and they are subject to such modifications as the State Legislature may make during the session in which they are made or the session immediately following. In other words, even though the power to make rules or make draft rules in fact is delegated to the State Government, the approval of the Legislature is necessary before the rules become effective. Such rules therefore have the efficacy of the statutory rules as if they are the part of the statute. It will therefore be legitimate to look into these rules to find out what contingencies the statute contemplates where postponement of election or postponement of a poll may become necessary and will be required to be completed in the manner given in these rules. Rules 49, 50 and 51 make provision for adjournment of poll in emergencies or in case of destruction of ballot boxes. If the poll at any polling station is adjourned, then provision is made for taking a fresh poll after following the procedure provided in these rules. A fresh poll is also permissible in case of destruction of ballot boxes or ballot boxes being unlawfully taken out of the custody of the Presiding Officer or the Returning Officer. It is precisely to make provision for such contingencies that the proviso to Sub-section (3) of Section 57 carefully vests the power in the Collector to complete the election process. But barring such extraordinary contingencies, it cannot be said that ordinarily it is permissible for the Collector to publish the names of persons to be elected under Section 57 (1)(f) even though all the elections have not been completed and the non-completion is not due to any emergencies enumerated in the rules. Rule 60 of the rules, which makes provision for publication of the names, requires the Collector to publish the names of a the members of the panchayats with their permanent addresses and the names of the electoral divisions from which they are re-elected. Now, in the instant case, if the fiction in Section 57(3) is to be applied as desired by the contesting respondent, it will mean that even though elections were not held in two of the electoral divisions, the publication of the names, i.e. the names of two elected members from one electoral division would be deemed to constitute this Panchayat Samiti and would therefore entitle the Collector to proceed to hold a meeting to elect the Chairman of such Panchayat Samiti. In our opinion, to put such, a construction on the provisions of Section 57 or 67 will be not in furtherance of the object of the statute but will in fact frustrate the, basic concept of constitution of the Panchayat Samiti under this Act.
19. The Panchayat Samiti that is constituted is a corporate body, and the learned Counsel for the petitioners: is right in. contending that the constitution of a corporate body must mean the due constitution of every limb of that body. In this connection our attention was invited to certain observations in a decision of the Supreme Court, in Board of Trustees v. State of Delhi : AIR1962SC458 . The following observations are apposite in the context of this contention (p. 464) :
What is a Corporation Corporations may be divided into two main classes, namely, corporations aggregate and corporations sole. We are not concerned in the present case with corporations sole. A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in. common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence.' (Halsbury's Laws of England, 3rd Edn. Vol. 9, page 4). A corporation aggregate has therefore only one capacity, namely, its corporate capacity. A corporation aggregate may be a trading corporation or a non-trading corporation. The usual examples of a trading corporation are (1) charter companies, (2) companies incorporated by special acts of Parliament, (3) companies registered under the Companies Act, etc. Non-trading corporations are illustrated by (1) municipal corporations, (2) district boards, (3) benevolent institutions, (4) universities etc. An essential element in the legal conception of a corporation is that its identity is continuous, that is, that the original member or members and his or their successors are one. In law the individual corporators, or members, of which it is composed are something wholly different from the corporation itself; for a corporation is a legal persona just as much as an individual. Thus, it has been held that a name is essential to a corporation; that a corporation aggregate can, as a general rule, only act or express its will by deed, under its common seal; that at the present day in England a corporation is created by one or other of two methods, namely, by Royal Charter of incorporation from the Crown or by the authority of Parliament that is to say, by or by virtue of statute. There is authority of long standing for saying that the essence of a corporation consists in (1) lawful authority of incorporation, (2) the persons to be incorporated, (8) a name by which the persons are incorporated, (4) a place, and (5) words sufficient in law to show incorporation. No particular words arc necessary for the creation of a corporation; any expression showing an intention to incorporate will be sufficient.
Thus, the essence of a corporation such as the Panchayat Samiti is the completion of the process of incorporation. That process, among other elements, consists in holding elections from the electoral divisions, and if that process is not completed, then it cannot be said that the corporation has been duly constituted or that the Panchyat Samiti. has been established in law so as to allow it to function and exercise further rights after due incorporation
20. In our opinion, it is not necessary nor possible to hold that the provisions of Section 67 are controlled by Section 57 or 57(1) in particular. The fiction that is created by Sub-section (3) of Section 57 is merely to ensure the continuity of the entity of the Panchayat Samiti. 'What Section 67, on the other hand, speaks of is the satisfaction of conditions under which the chief office-bearer of the Panchayat Samiti is to be elected. In this context also, reliance is placed on behalf of the contesting respondent on the provision of Sub-section (I) of Section 67 that a meeting for election of Chairman of the Panchayat Samiti is to be called three days before the date fixed for the first meeting of the Parishad. One can conceive of several contingencies and circumstances in which a meeting of the Panchayat Samiti may not be possible to be called within three days of the date of the first meeting of the Zilla Parishad, The Act does not make any provision to fix an order of priority by statute in respect of the dates on which elections to the Zilla Parishad and the Panchayat Samiti may be held. The law as it stands makes it possible and in many cases probable that elections of members of the Panchayat Samiti, though as far as they may synchronise, may not in a given case be held within the time schedule fixed for elections to the Zilla Parishad. If the strict interpretation contended for by respondent No. 1 as regards the date for calling a meeting under Section 617 is to be accepted, it will mean, that if for any emergency no member under Section 57(1)(f) is elected, may be, for a variety of reasons, even then a meeting must be called within three days of the date fixed for the meeting of the Zilla Parishad and whatever members are present in category (a) or category (c) in Section 57(I), they can proceed to elect the Chairman of the Panchayat Samiti. We do not think that such a construction is possible. In fact, under the law, a Panchayat Samiti cannot be held to be constituted at all unless the names of the persons elected under Section 57(1)(f) are published. If that is a condition for constitution of the Panchayat Samiti, we do not think that the requirement that the meeting for 'election of Chairman of the Panchayat Samiti shall be called within three days of the date of the first meeting of the Zilla Parishad is mandatory or must necessarily be carried out whatever the circumstances. There is a further indication in the proviso to Sub-section (3) of Section 67 which empowers the Collector who is to preside over such a meeting to adjourn the meeting for reasons to be recorded in writing. If an adjournment of the meeting is permissible under the proviso, Sub-section (3) of Section 67, we fail to see how the requirement that the meeting must be held within three days of the date fixed for the meeting of the Zilla Parishad can be said to he mandatory in all the circumstances. We are inclined to accept the contention urged on behalf of the petitioners that the provisions of Section 67 have to be independently construed untrammelled or uncontrolled by the provisions of Section 57. Under Sub-section (I) of Section 67 the duty cast on the Collector is to call a meeting for election of the Chairman of the Panchayat Samiti and such meeting is to comprise of persons who fall under the categories in Clauses (a), (c) and (f) of Section 57(I). It does not even require, it seems, that the elected members, i.e. persons falling in Clause (f) of Section 57(1) should be only such whose names are published. In other words, the publication of the names of the elected members under Section 57 does not appear to be a condition precedent for their participation in a meeting called by the Collector under Section 67(1). Right is given to them as soon as they are elected or they are appointed under Clause (c) of Section 57(1), though in this latter case such a person is only entitled to consultation and attendance, and not to vote.
21. Several difficulties would arise if the construction sought for by the contesting respondent for rigid application of the provisions of &. 67 is to be accepted. The primary idea in the constitution of a Panchayat Samiti is to give a pride of place to the elected members, i.e. the members who are directly elected to the Panchayat Samiti. If all such members are not there, then it is difficult to see that the further right of electing the Chairman of the Panchayat Samiti should be exercised by other members in the absence of all those coming under cl, (f) of Section 57(1).
22. How unjust such a contention may prove is illustrated in the instant case. Prom the three electoral divisions comprised in this Block, six members are to be elected under Clause (f) of Section 57(I). Election of four such members from two electoral divisions has been stayed by the Court. Thus, only two members were elected from one electoral division and they are claiming a right to elect the Chairman of the Panchayat Samiti in collaboration with three of the members under Clause (a) of Section 57(I), who are members of the Panchayat Samiti by virtue of their holding the office of 'Councillor of the Zilla Parishad, We do not think that such a result is contemplated by the Legislature merely because of the provision of the fiction in Sub-section (5) of Section 57 of the Act.
23. There is yet another aspect of the matter which cannot be lost sight of. Elections in the two electoral divisions have been stayed at the instance of the Court. It is thus the order of 'the Court that has prevented the electorate from electing their representatives. This was necessary to ensure fairness in the elections and grant relief to the petitioners from unsustainable orders rejecting the nomination papers of some of the candidates. If the constitution of the Panchayat Samiti as contemplated by the Act is deferred on account of the order of the Court staying elections, then we do not think that the Court should be 'powerless to prevent the duly elected members from these constituencies to participate in the election of office-bearers of the Panchayat Samiti. This, in our opinion, also is an overriding consideration for which in a proper case the Court may be justified in setting aside the, elections held without the presence of the duly elected members whose election had to be postponed and has not taken place on account of orders by judicial authorities. Nobody should be allowed to suffer and every effort ought to be made to prevent injustice and prejudice being caused to such persons who have been disabled from exercising their right because of the orders of the Court. In the instant case, the electorate is yet to elect its representative who form a substantial portion of the elective element in the body and in these circumstances, in our opinion, respondent No. 7 cannot be heard to gay that his election at the meeting held on August 7, 1967, is valid and must be upheld.
24. Accordingly, we allow the second prayer of the petitioners, also set aside the election of respondent No. 7 as Chairman of the Panchayat Samiti, Lakhandur, and direct that the election to this office shall be held after the elections which have been stayed by this Court have been completed according to law. The result is that the petition is allowed but in the circumstances there will be no order as to costs.