1. In this petition under Article 226 of the Constitution, the petitioner challenges the very constitution of the village panchayat of village Surgana, District Nasik, contending that (a) it is not a validly constituted panchayat under the provisions of the Bombay Village Panchayats Act, 1958, (hereinafter referred to as 'the Act') and (b) respondents Nos. 7 to 12 who are its nominated members are not entitled to take part in the affairs of the said panchayat.
2. Facts giving rise to this petition areas follows:--
3. The petitioner is a resident of the aforesaid village Surgana. The said village has a panchayat divided into four wards. Elections to this panchayat were held in May 1978. Ward No. 1 had two seats and Wards Nos. 2, 3 and 4 had three seats each -- thus in all eleven seats. From Ward No. 1 respondent No. 2 was elected, from Ward No. 2 respondents Nos. 4 and 5 were elected, from Ward No. 3 respondent No. 3 was elected and from Ward No. 4 respondent No. 6 was elected. Thus, though there were eleven seats, only five persons were declared elected, reason being that thought there were nominations of other candidates (including the petitioner herein), their nominations were rejected as being invalid leaving in the contesting field only the aforesaid five persons. As the total of the elected persons viz., five, fell short of the total number of seats viz., eleven, the Standing Committee acting under Subsection (3) of Section 10 of the Act, nominated, sometime in November 1978, respondents Nos. 7 to 12 as members of the panchayat. Soon thereafter the present petition was filed for reliefs indicated hereinabove.
4. Mr. Dudhat, the learned Advocate for the petitioner, contends that the impugned election held in May, 1978 failed to result in a validly constituted panchayat as the said election failed to return the requisite number of candidates necessary to constitute a valid panchayat. He submitted that under Section 10 (1) (a) (i) of the Act, the maximum strength of the elected members of this panchayat was eleven and by virtue of Sub-section (4) of Section 10 of the Act, a minimum of two-thirds of the total number of members required to be elected was requisite for the valid constitution of the panchayat. As the impugned election resulted in only five persons being returned as elected to the panchayat and as the said number fell short of the minimum two thirds as required by Sub-section (4) of Section 10 of the Act, the Panchayat was not validly constituted in law and its functioning would consequently be void ab initio. On the other hand, Mr. Saldhana, the learned Assistant Government Pleader for the State as also Mr. Kankaria, the learned Advocate for some of the contesting respondents, contended that on a proper construction of Section 10, it is clear that for a valid constitution of a panchayat, there should be at the relevant time a minimum of two-thirds of the total number of members thereof irrespective of whether the same are elected under Section 10 (1) and/or nominated under Section 10 (3).
5. After a careful consideration of the provisions of Section 10 and having regard to the scheme underlining it, we are of the opinion that the more reasonable view to take would be that though two-thirds is the requisite minimum for the constitution of a valid panchayat, the said two-thirds can be made up of either elected and/or nominated members. All that is necessary for the constitution of a valid panchayat is that there must be at the relevant time a minimum of two-thirds members, irrespective of whether the said minimum consists of elected and/or nominated members. Consequently, if, as in the present case, election does not result in the return of the requisite minimum of two-thirds there is no bar on the Standing Committee nominating the rest -- indeed, in such circumstances it becomes, under Sub-section (3) of Section 10, the duty of the Standing Committee to so nominate the rest.
6. Under Section 10 (1) (a), a panchayat shall consist inter alia of such number of elected members, not being less than seven and not more than fifteen, as the Collector may determine. The said number in the present case is eleven. Taking this provision by itself, it would mean that for a valid constitution of the present panchayat, eleven elected members are necessary. But the May 1978 elections resulted in the return of only five members leaving vacant as many as six seats. However, as to what should happen in such a contingency is clearly provided in Sub-section (3) of Section 10 viz., if for any reason an election does not result in the return of the required number of qualified persons willing to take office, the Standing Committee shall, as soon as possible, appoint from persons qualified to be elected such persons as are necessary to make up the required number, and this is equally important -- the person so appointed shall be deemed to have been duly elected under Sub-section (1). In the exercise of this power and in the discharge of its duty under Section 10 (3), the Standing Committee did thus nominate in this case, respondents Nos. 7 to 12 to the unfilled seats bringing the total to eleven being the maximum laid down for this panchayat. And thereafter the panchayat was a validly constituted body legally entitled to function.
7. Mr. Dudhat, however, contends that for valid constitution of this panchayat all the eleven seats or, in any event, by virtue of Section 10 (4), at least two-thirds thereof must be filled in by elections only. The plain words of Sub-sections (1) and (3) of Section 10 run counter to this submission. Under neither of these subsections, there is any indication that for constitution of a valid panchayat, all the members must necessarily be only elected members. Indication, on the contrary, is just the reverse. Section 10 (3) specifically provides for nomination in the event of failure of requisite number of elected members under Section 10 (1). Power coupled with duty under Section 10 (3) has, therefore, to be exercised to fill up by nomination the lacuna, if any, in the full strength requisite under Section 10 (1). Furthermore, this power of nomination also does not depend upon whether the election results in more than two-thirds or less than two-thirds being returned. Forthe exercise of power under Sub-section (3), it should suffice that the election under Section 10 (1) has resulted in the return of less than the maximum number necessary for constituting the panchayat. In this case, the maximum number was eleven. The elections returned only five and the Standing Committee nominated the remaining six. The Standing Committee thus rightly exercised its power under Sub-section (3) of Section 10, which power, as stated above, it was entitled to exercise and which action, as already indicated, was part of its duty.
8. Some doubt, however, is created by the wording of Section 10 (4) under which if two-thirds or more of the total number of members required to be elected under Sub-clause (i) of Clause (a) of Sub-section (1) of Section 10 are elected, 'failure to elect the remaining members shall not affect constitution of the panchayat'. It is on this Section 10 (4) that Mr. Dudhat lays great emphasis. However, on closer scrutiny of the entire scheme of Section 10, the emerging position is clear. All that Sub-section (4) provides is that two-thirds are necessary in order to constitute a valid panchayat. It nowhere says that the two-thirds must necessarily be directly elected members. This two-third may as well be either of directly elected members under Section 10 (1) or of nominated members under Section 10 (3) who shall be deemed to be duly elected under Section 10 (1) or even an admixture of both directly elected and nominated members. Sub-section (4) only qualifies, to an extent, the mandate of Section 10 (1), While under Section 10 (1), the panchayat herein must consist of eleven members, it may nevertheless consist of only two-thirds of the said eleven and would then, by virtue of Section 10 (4), be yet regarded as a validly constituted panchyat.
9. Our interpretation of Section 10 receives support also from a ruling of a Division Bench of the Gujarat High Court in Solanki Kalabhai Gagabhai v. State of Gujarat, : (1966)7GLR351 , wherein this very Act viz., The Bombay Village Panchayats Act, 1958, and this very Section 10 thereof came up for consideration. Main contention raised there was that the power to nominate under Section 10 (3) can be exercised only in case where election under Section 10 (1) results in the return of at least one or more persons but cannot be exercised where it results in the return of no candidate at all. The Division Bench after considering the scheme of Section 10 ultimately concluded in the following words;
'The word 'elected' in Sub-section (4) must be read in the context of the provisions of Sub-section (1) and Sub-section (3) of Section 10. Two-thirds of such members can either be elected as provided for in Sub-section (1) or can be persons who are deemed to be elected under Sub-section (3). The only condition prescribed by Sub-section (4) therefore is that in order to validly constitute a panchayat, there must be two-thirds of the required number elected or deemed to be elected under Subsection (1) or Sub-section (3) of Section 10.'
We are entirely in agreement with this ratio of the aforesaid ruling:
10. Our conclusion also receives support from the report of the Joint Committee of the State Legislature dealing with the aforesaid provision in its bill form. The majority report of the Joint Committee dealing with Clause 10 (the equivalent of Section 10) runs as follows:
'......... ......... ...... ...... ...... ... ... Anew Sub-clause (4) is added to provide that if two-thirds of the number required to constitute the panchayat are elected and the remaining members are not yet elected, the constitution of the panchayat will not be affected.'
There is, however, a note of dissent by eight members of the said Joint Committee which note qua Clause 10 is as follows :--
'If for any reason an election does not result in the return of the required number of members, provision for re-election to fill vacancy or vacancies should be made. Provisions of Sub-clause (3) shall come into force only after any vacancy or vacancies remained unfilled after the re-election.'
It will thus be seen that even under the dissenting note there was no objection to the remaining members being nominated by the Standing Committee under Subsection (3), provided, one more election was held before doing so. This suggestion of one more election was, however, not accepted by the legislature which, in its wisdom ultimately enacted the present Sub-section (4) as recommended by the majority of the Joint Committee.
11. Mr. Dudhat, however, contended that not nominations but re-elections was a more democratic answer or solution to the stalemate that may result if insufficient number of members are elected to the panchayat. To an extent, there is some substance in this submission. Avillage panchayat should as far as possiblefunction with elected members. Democracy prefers election to nomination. Question and difficulty, however, is what happens if one election after another results in one failure after another to return the requisite number of successful candidates by the electorate Will not the end result of such an electoral process be a virtual deadlock In the circumstances, if the best viz., a wholly elected panchayat is not available it is better to have the next best viz., an elected-cum-nominated panchayat or, in a rare case, even a wholly nominated panchayat rather than have no panchayat at all. Moreover, if an electorate is keen to have an elected panchayat, nothing prevents it from putting up requisite number of valid candidates in that behalf and electing them. But if, as a result of its own indifference or even otherwise, the election does not result in the return of requisite number of successful candidates, the electorate should then, rather than have no panchayat at all, prefer to have nominations thereto by the Standing Committee. This would also be in consonance with the social objectives underlining the institution of village panchayats. In the context, it may also be noted that once nominated, the nominated member is deemed to have been duly elected and would consequently enjoy all the rights of an elected member of the panchayat.
12. It is, however, contended that in such an event, it would be open to the State Government to appoint an administrator under Section 151 of the Act. Now, we would have thought that even a nominated panchayat would be a far better proposition than a single individual viz., an administrator. Decentralised power is preferable to power centralised and concentrated. One-man rule would be the very negation of democracy -- even panchayat democracy where its roots begin. If is best avoided lest it jeopardises the democratic mechanism under the Act, An Administrator is appointed by the State Government while members are nominated by the Standing Committee which itself consists of the Zilla Parishad members most of whom are elected. This Committee is comprised of (i) the President of the Zilla Parishad; (ii) the Chairmen of six subjects committees; (iii) seven councillors elected by the Zilla Parishad; and (iv) only two co-opted outsiders. It is only when the scheme under Section 10 totally collapses that power under Section 151 may be invoked as a final safety valve. An electorate must be given an opportunity of having a validly constituted panchayat either by direct elections under Section 10 (1) and/or by nominations under Section 10 (3). If both these fail, only then, as the last step in the entire process, it should be open to the State Government to appoint an administrator under Section 151 -- because the work of the panchayat is also important and cannot be brought to a standstill but must be kept going. This entire process aforesaid is also in consonance with the main object of decentralising executive functions viz., giving power, albeit of a comparatively minor nature, to local citizens to govern themselves. But if they are not willing to do so, they may then have to accept, and that too only by way of a transient arrangement, an administrator in charge of their village panchayat.
13. This then being the true position involved, conclusion follows that the village panchayat herein is a validly constituted panchayat and respondents Nos. 7 to 12 are its validly nominated members consequently deemed to be its duly elected members entitled to take part and participate in all its affairs.
14. In the result, this petition challenging the aforesaid twin validity fails and is liable to be dismissed.
15. Rule discharged. However, in the circumstances of the case, there will be no order as to costs.
16. Petition dismissed.