1. The President of Asifabad Panchayat Samithi, one Poshetti, died on 24-9-1981. His death caused a casual vacancy in the office of the President of the above Panchayat Samithi. Rule 44 of the Andhra Pradesh Panchayat Samithis (Conduct of Election of President, Panchayat Samithis) Rules 1979 issued in G. O. Ms. No. 142, Panchayat Raj dated 21-2-1979, mandates the election authority to fill up any such casual vacancy of election of a new President within one hundred and twenty days from the date of occurrence of such vacancy. Although the limit of one hundred and twenty days fixed by the aforesaid Rule 44 had expired by 23-1-1982, no election to fill up the casual vacancy caused by the death of the abovesaid Poshetti in the office of the President of Asifabad panchayat Samithi was conducted. The Present petitioner therefore filed this writ petition on 10-2-1982 for directing the respondents to conduct the election and (for) another relief which he had given up now.
2. In view of the undenied fact regarding the death of Poshetti on 24-9-1981 while in office, it is clear that a casual vacancy in the office of the President of the Panchayat Samithi had arisen. The abovementioned Rule 44 clearly applies to the above situation. That Rule 44 reads thus :
'Filling up of casual vacancies; Any casual vacancy of a member or President shall be filled up within one hundred and twenty days from the date of occurrence of such vacancy on issue of a notification by the election authority following the provisions of these Rules and orders made thereunder. If the vacancy so caused be a vacancy reserved in favour of the members of the Scheduled Castes or the Scheduled Tribes, the person to fill that seal shall belong to the Scheduled Caste or the Scheduled Tribes as the case may be.'
That rule obliges the election authority to issue a notification for the purpose of holding the election to fill up the casual vacancy which had thus arisen within the time mentioned above.
3. Rule 44 of the aforesaid Rules uses the word 'shall' and imposes a mandatory duty upon the election authority to hold fresh election. It is a rule made under the Act and therefore contains the will of the legislature. The Executive has no option but to carry out the legislative mandate. Yet no election has so far been conducted for filling up the casual vacancy. The default on the part of the election authority amounts to defeating the legislative will which would be wholly impermissible under the rule of law we live by. Under our system of Government, the executive Government has no parallel source of power. It must do or die according to the dictates of the legislature. In this case, as the Legislature had directed the filling up of the casual vacancy within one hundred and twenty days, elections ought to have been held within one hundred and twenty days. Yet they were not held. I am, therefore, of the opinion that this is a fit case where this Court should issue a writ of mandamus to the respondents to conduct the election to the post of President of the Panchayat Samiti of Asifabad.
4. The submission made by Shri Innayya Reddy, the learned Government Pleader that there is a proposal under consideration of the Government to reconstitute Asifabad Panchayat Samithi by transferring certain areas of the said Samithi to be constituted as Bellampalli Municipality cannot be accepted as a legal justification for this executive failure to obey the law. In law we live in present and never in future. For its failure to act according to law to-day, executive cannot plead tomorrow as a justification. The obligation imposed by law to conduct bye-election within one hundred and twenty days cannot be defeated or delayed. The legal maxim is that even if heavens fall justice should be done.
5. Rule 44 is a mandatory provision and is intended by the Legislature not to allow the executive to keep such an important public office as that of the President of a Panchayat Samithi vacant beyond one hundred and twenty days. The purpose of rule 44 is to deny any play to the executive discretion in the matter of filling up of casual vacancies. In the fact of that clear legislative mandate, a Court is powerless to accept any executive justification such as the one advanced by the Government Pleader for disobeying the law. As and when the Bellampalli Municipality comes to be constituted with the transferring of some of the territories of the present Asifabad Panchayat Samithi, the residents of these transferred areas would be disentitled to vote from that date in the elections that may be held thereafter for the Panchayat Samithi of Asifabad. But meanwhile the rights of the voters of Asifabad Panchayat Samithi cannot be whittled down or taken away on the basis of that future event. That future event that has not yet taken place cannot, in my opinion, be relied upon to restrict the statutory obligation of the executive arising under the existing provisions of law.
6. In view of the above, I direct the Commissioner of Panchayat Raj to issue the necessary notification for the purpose of conducting the election in order to fill the casual vacancy in the office of the President of Asifabad Panchayat Samithi within four weeks from today and to hold elections to that office within two months thereafter. A writ will issue in terms indicated above. The petitioner will be entitled to his costs. Advocate's fee Rs. 150/- (Rupees one hundred and fifty only).
7. Petition allowed.