A.D. Desai, J.
1. The petitioner challenges the order of the Taluka Development Officer Morvi dated February 23. 1968. appointing opponents Nos, 5 and 6 as members of the Gram Panchavat of Tankaria village in purported exercise of power under the provisions of sub-section (1) of Section 53 of the Guiarat Panchavat Act. 1961 (hereinafter referred to as the Act).
2. Shortly stated. the facts are that the general election of the members of the Tankaria Gram Panchavat was held on December 8. 1967. in which the petitioner had contested two seats from Ward No. I and Ward No. 4, The result of the election was declared on December 11. 1967 and the Petitioner was declared to have been elected from both the wards. It is the say of the petitioner that after publication of the result of election he acting under Rule 37 of the Gujarat Gram and Nagar Panchavats Election Rules, 1962 (hereinafter referred to as the Rules). had sent his resignation to the Taluka Development Officer on December 11, 1967, as a member elected from Ward No. 1 and bad also declared that he continued to be a member of the Panchavat from Ward No. 4. He had sent his resignation letter under a postal certificate. Pursuant to the declaration of the result of the members of the Panchavat, a notice of election of Sarpanch, and Up-Sarpanch of the Gram Panchavat was issued on December 21. 1967 to every elected member of the Panchavat, No such notice was received by the Petitioner and so he ed-4 dressed a letter to the Taluka Development Officer. Morvi, on December 22, 1967. asking him why be had not been informed about the election of Sarpanch and Up-Sarpanch. On the same day he wrote another registered letter to the Taluka Development Officer to accept his resignation as a member from Ward Na I from December 11, 1967. In this letter, the Petitioner referred to his earlier letter dated December 11. 1967 and requested the officer to accept his -resignation with effect from December 11, 1967. The Taluka Development Officer replied to this letter of the Petitioner by his letter dated December 26, 1967. In which he stated that as the Petitioner had not sent his resignation from one of the two seats within 7 days from December 11. 1967, to the Returning Officer his election had become void as contemplated under R. 37 f the Rules. The petitioner. therefore, filed Miscellaneous Application No. 146 of 1967 in the Court of the Civil Judge Senior Division, Gondal-Morvi. under Section 24 of the Act for a declaration that he was elected from Ward No. 4 of the Tankaria Gram Panchavat. The Court dismissed the petition as not maintainable. During this period on February 23. 1968. a copy of the order of the' Taluka Panchavat was placed on the notice-board of Gram Panchayat stating that according to the orders of the Government of Gujarat No. CH. TA. NA. 3067-7410 CH dated November 16 ' 1967. It was not possible to hold election of members for the vacant seats as elections of District Panchavats and Taluka Panchavats were to take Place in the month of February and March. It was further stated that in pursuance of the Resolution No. 6 dated August 6, 1967. of the Gram Panchavat two seats in Wards Nos. I and 4 had become vacant and opponents Nos. 5 and 6 have been appointed as members from Wards Nos. 1 and 4 respectively.- as per the provisions of -Section 53 (1) of the Act and the tenure of their office would be as -per the tenure of the Panchavat. The petitioner has averred that opponent No. 6 had contested election from Ward No. 4 against the petitioner but he was defeated thereat. The petitioner challenges, this order dated February 23, 1968, of appointments of opponents Nos. 5 and 6 as members in Wards Nos. 1 and 4 in this Court mainly on two grounds. The first is that the power of appointment conferred by the Provisions of sub-section (1) of Section 53 of the Act is conditional. the condition being. that 'no member is so elected at the election', i.e.. the power of appointment can be exercised only when an election is held and no member is so elected. It does not cover a case in which no election is at all held. An order of appointment can be passed only in a case where an election is held. In the instant case admittedly no election was held and therefore the Taluka Development Officer who was the competent authority had no Power to pass the impugned order. The said order was therefore. bad and. illegal. The second contention was that the petitioner had exercised his option under Rule 37 of the Rules by sending his resignation as an elected member from Ward No. 1 and claiming to continue as an elected member from Ward No. 4 to the Taluka Development Officer within the stipulated time. The result was that the impugned order of appointment of opponent No. 6 as a member of the Panchavat from Ward No. 4 is invalid and illegal as there was no vacancy. the power under S. 53 of the Act of appointing a member could not be invoked. The Petitioner claims a relief that he be declared an elected member from Ward No. 4 to the Gram Panchavat that the order appointing opponents Nos. 5 and 6 as members of the Panchavat from Wards Nos. 1 and 4 respectively be quashed and the opponents be restrained by an order of injunction from acting in pursuance of the said order of appointment. Opponent No. 1 to the petition is State of Gujarat. Opponent No. 2 is the Gram Panchayat. Tankaria, opponent No. 3 is Mr. P. J. Pathak the Taluka Development Officer, Morvi. Opponent No. 4 is Mr. C. M. Bhojani. Returning Officer. Morvi Opponent No. 5 is Koringa Thobban Laxman and Opponent No. 6 is Saman Alarakha Daud.
3. On behalf of the State an affidavit is filed by Mr. R. G. Mehta successor-in office of Shri P. J. Pathak. the then Taluka Development Officer. Morvi contending that this special application is barred by the provisions of Section 24 of the Act. that the petitioner had not sent his letter of resignation to the Taluka Development Officer on December 11, I967, that 'be Taluka Development Officer Morvi. had not received the said letter that the petitioner concocted and created the -postal certificate referred to by him, that the two seats had become vacant under the provisions of Rule 37 (3) of the Rules and as no election was held to fill in the vacancies. the order appointing opponents Nos. 5 and 6 as made by the Taluka Development Officer was valid and legal. This petition came up for hearing before a Single Judge of the Court who did not agree with the interpretation put by J. B. Mehta J. in Special Civil Appln. No. 915 of 1968 decided on 20-3-1969 (Guj.). in which Section 19 providing for appointment of members In lieu of the elected members came to be interpreted and Particularly the interpretation put by him on the expression' and the persons so appointed shall be deemed to have been duly elected to the relevant Panchayat' This expression was interpreted to mean that the Legislature by providing that requisite number of persons being returned by Process of appointment created a fiction that the -process of appointment was a process of election and the appointment so made could be challenged only before an Election Tribunal constituted under Section 24 of the Act. Section 53 also uses the same expression and. therefore, 'the Single Judge referred to this Petition to a Division Bench and now it is placed before us for final hearing.
4. A Preliminary objection regarding the maintainability of this petition i.3 raised by the learned Advocates for the opponents. The argument was based on the first proviso to sub-section (1) of Section 53 of the Act which enacts that 'if no member Is so elected within two months from the date on which notice of the vacancy is given to the competent authority, the competent authority shall. as soon as possible appoint a person who is qualified to be elected, and the person so appointed shall be deemed to have been duly elected'. It was contended that when an election is n,,)t held, the result is that no member is elected to fill in the vacancy and the competent authority has under the provisions of the proviso an authority to appoint a person qualified to be elected. It was further argued that Section 12 of the Act provides that the Gram Panchavat must be constituted of elected members only and when a -person is appointed under the first proviso he is deemed to be elected. This legal fiction must be taken to its logical end and in view of the provision, of Sections 12 and 53 of the Act the consequence was that the Legislature by a notional process of election treated such appointed persons as duly elected to the Panchavat. The words 'deemed to have been duly elected' mean contended the learned advocates for the opponents. as if an appointed member is an elected member at a regular election after having crossed all the stages of election though in fact he had not gone through any stage of election. In short the argument was that the consequence of the legal fiction as envisaged by the said provision is that the process of appointment is equivalent to the process of election and that being so the remedy of the petitioner was to challenge the impugned order of appointment of opponents Nos. 5 and 6 as members of the Panchavat by. an election petition under Section 24 of the Act which Provides that, so far is relevant. the validity of any election of a member of a panchayat is brought in question by any Person qualified to vote at the election to which such question refers. such Person may. at any time within fifteen days after the date of the declaration of the results of the election, apply to the Civil Judge for the determination of such question. In support of the aforesaid argument reliance was sought to be Placed 'on the judgment delivered by J. B. Mehta J. in Special Civil Appln. No. 915 of 1968 (Guj.). wherein the learned Judge observed as under:
'It is therefore clear that Sections 18 and 19 contemplate that if for any reason the election does not result in the return of requisite number of members willing to take office, the competent authority in the case of a Gram Panchavat shall appoint such persons as are necessary to make up the required number and even such Persons so appointed are deemed to have been elected to the relevant panchayat and their names have to be published by the appointing authority in the manner prescribed. Therefore the scheme of these two relevant Sections 18 and 19 is that the entire process of election does not get completed until the requisite number is returned. at the relevant election and in cases where such 'requisite number has got to be made up even by appointment. the Legislature by a notional process of election treats such Persons as duly elected to the Panchayat. Section 24 is the general section under the same chapter which provides for resolution of election disputes by the Civil Judge concerned. He would have therefore jurisdiction even in cases where the process of election has been completed by this notional process because the requisite number was not returned at the election . . . . . . Where therefore in a case of t-his kind where the Legislature under Section 19 (1) provided requisite, number of persons being returned even by process of appointments it created a fiction that it was an entire process of election by treating those appointed persons as duly elected.'
It must be remembered that in the present case the petitioner did make an application under Section 24 of the Act but the same was rejected by the learned Civil Judge as being not competent. Opponents Nos. 2 to 6'were not parties to C-at petition and therefore. it was open to them to contend that the remedy of the Petitioner was under S. 24 of the Act
5. Now there is no dispute that a vacancy of a member of Gram Panchayat is required to be filled in by election and this is the effect of the substantive part of sub-section (1) of Section 53 of the Act. Under the proviso if no member is so elected the competent authority has the power to appoint a Person who is qualified to be elected and the person so appointed shall be deemed to have been duly elected under the sub-section. The fiction thus relates to the person appointed and not to the process of appointment. This legal fiction is enacted because S. 12 of the Act requires that the elected persons must constitute a gram panchayat. The process of election and that of appointment are quite different and distinct and this is evident and 'patent from the provisions of sub-section (1) of Section 53 of the Act itself. It is only when a member is not so elected that the competent authority has to exercise the Power of appointment. The process of appointment is thus not the same as the process of election. It is in substitution of the process of election. The rule of interpretation is that a legal fiction is created only for some definite purpose and it should be limited to the purpose for which it is created. It should not be extended beyond that legitimate field. A legislative fiction has to be construed strictly and confined to the area assigned to it by the Legislature and must be harnessed for the specific purpose for which the Legislature created it. The fiction should be carried to its logical end but must be within the framework for the purpose for which it is created. In the instant case the provisions of Section 53 (1) of the Act require a vacancy of a member of a Panchavat to be filled in by election. Section 12 of the Act provides that Gram Panchavat shall consist of elected members. Elected members are entrusted to run the Panchavat. If no member so elected under Section 53 (1) of the Act, the competent authority has to appoint a member. The appointed member is distinct from the elected member and. therefore to equate him with the elected member so that he can discharge his functions as such a member to run the Panchayat the Legislature enacted the legal fiction. This is the specific purpose of the fiction and the fiction must be confined to it. The provisions creating the fiction are specific and clear and refer only to the appointed member and not to the Process of appointment. The legal fiction works, after a person is appointed. In other words the fiction operates only after an appointment of the person as a member therefore if the validity of an appointment order is to be challenged no recourse lean be had to the provisions of Section 24 of the Act. the arena of which is restricted to the challenge to the validity of an election. Under Section 24 of the Act the validity of an election can be brought in question by any person qualified to vote at the election to which such question refers. If the process of appointment is to be equated with that of the election who is the person so qualified to vote at the process of appointment who can challenge the election under Section 24 of the Act? There is no voter in the process of appointment and. therefore, the provisions of Section 24 of the Act cannot be 4availed of in such ;I case. The attention of Mehta J. was not drawn to the heading of Chapter III which includes Sections 18 and 19 of the Act. The heading of the Chapter IT is: 'Election. Appointment or Co-option of Members of Panchavats. Election Disputes, etc.' The sections contained in the Chapter therefore deal with process of election appointment and co-option. Section 22 (3) of the Act provides that every person qualified to be elected shall be qualified to be appointed or co-opted as a member of a panchayat. Section 25 provides that if any member of a Panchavat who is elected or appointed or co-opted as such was subject to any of the disqualifications mentioned in Section 23 at the time of his election appointment or co-option as the case may be or during the term for which he has been elected appointed or co-opted incurs any of the disqualifications mentioned in Section 23. he shall be disabled from continuing to be a member, and his office shall become vacant. These provisions clearly point out that the process of election and the process of appointment are not the same. The learned Judge therefore. in our opinion was in error in holding that by the legal fiction the process of appointment was equated with the process of election and the appointment of a person could be challenged under Section 24 of the Act. The legal fiction is attached to the Person appointed in order that he may be able to work as elected member and that being the Purpose the legal fiction cannot be extended or carried beyond its scope. With great respect the ratio of decision in that Special Civil Application laid by J. 13. Mehta J. does not lay down the correct law and, therefore. cannot be accepted. For the aforesaid reasons we are of the opinion that the petitioner has no remedy under Section 24 of the Act and the present application is maintainable.
6. It is next contended that the power of appointment conferred under the first proviso of sub-section (1) of Section 53 of the Act is conditional and can be exercised only when no member is so elected. In the instant case it is not disputed that the competent authority is the Taluka Panchavat. By resolution dated August 3, 1967. The Taluka Panchayat under the Provisions of Section 321 of the Act delegated its powers tinder Section 53 to the Taluka Development Officer, The Preamble of the impugned order indicates that under the instructions of the Government contained in letter No. CH.TA.NA. 3067-7410-CH, dated November 16, 1967 the elections of the village Panchayats could not be held after the end of the month of December in respect of the two seats fallen vacant in Wards Nos. 1 and 4 and as no election was held opponents Nos. 5 and 6 were nominated in Wards Nos. 1 and 4 respectively by the Taluka Development Officer. The Government Resolution has been -produced in this case and it is stated therein that the election of the District Taluka Panchavats and the Taluka Panchavats were to be hold in the month of February and March 1968 and if during this period the election% of Gram Panchavat were to be held, it would cause inconvenience and, therefore, the term of Gram Panchayat should be extended by the Collector who had power to do so under Sections 17 and 29 of the Act. It is clear, therefore that no specific order not to hold any election was given by the Government. The direction was only to extend the term of Gram Panchavat in order to avoid inconvenience. The State Government Order has not been properly construed by the Taluka Development Officer. What is important to determine is whether the Taluka Development Officer has the Power to appoint a qualified person in case where no election is held. It is necessary, therefore to refer to Section 53 (1) of the Act which reads as under:
'53. (1). Any vacancy in the office of a Sarpanch, Upa-Sarpanch, Chairman, Vice-Chairman or member of a panchayat of which notice has been given to the competent authority in the prescribed manner shall be filled by the election of a Sarpanch, Upa-Sarpanch, Chairman or Vice-Chairman or member, as the case may be who shall hold office so long only as the Sarpanch, Upa-Sarpanch, Chair-man, Vice-Chairman or member in whose Place he has been elected, would have held office if the vacancy had not occurred:
Provided that if no member is so elected within two months from the date on which notice of the vacancy is given to the competent authority the competent authority shall, as soon as Possible, appoint a Person who is qualified to be elected and the person so appointed shall be deemed to have been duly elected under this sub-section:
Provided further that if vacancy of a member occurs within four months preceding the date on which the term of the Panchavat expires under Section 17, it shall not be filled-'
It is contended that the substantive part of the section gives a direction to hold an election to fill in the vacancy. No period is provided therein as to when the election is to be held. The intention of the Legislature was that vacancy should not continue for a period of more than two months from the date from which notice is given to the competent authority and the Gram Panchavat should have the requisite number of members so that it can discharge its duties effectually. The contention was that proviso covers not only the case where no person Is elected for one reason or another but a case where no election at all is held to fill in the vacancy. In a case where no member is elected within two months, the competent authority has the power to appoint a person qualified to vote. In the present case, contended the learned advocates, no election was held within two months from the date on which the notice of vacancies was given to the competent authority and. Therefore, the competent authority passed the order of appointment. The said order was therefore legal and valid. Now the substantive part of Section 53 (1) of the Act provides for filling in vacancy in the office of a Sarpanch, Upa-sarpanch. Chairman, Vice-Chairman or a member of a panchayat. The vacancy is required to be filled in by an election. The use of word 'shall' indicates that the vacancy has to be filled in by holding an election. The first proviso to the section refers only to the filling in vacancy in the office of a member of a panchayat. It has no reference to the filling of any vacancy in the office of Sarpanch. Upa-Sarpanch, Chairman or Vice-Chairman. The words 'if no member is so elected' used in the proviso are important and mean that if no member is elected at the election referred to in the substantive part of the section. The rules of construction of a proviso are well settled. The broad and general rule is that the section and the proviso to it must be construed as a whole. The Court should try and reconcile them and give a meaning to the whole section. The operation of the proviso should be confined to the portion or the clause which directly precedes it The proviso is prima facie limited in its operation and must be considered in relation to the Principal matter to which It stands as a proviso and unless the words are clear the Court should not so construe a proviso so as to attribute an intention to the Legislature to give with one band and take away with another. If a proviso is capable of wider construction and if also capable of narrow construction if narrower construction brings it within the purview of the section then the Court must - prefer a narrow construction rather than the wider construction. The provisions of sub-section. (1) of Section 53 of the Act refers to the vacancy in the office of a Sarpanch, Upa-Sarpench, Chairman, Vice-Chairman or a member of a panchayat and the section provides that the same has to be filled in by election. The Proviso refers to the vacancy of a member of a Panchavat. The word 'shall' used in the substantive Part of the section must have the same meaning when any vacancy contemplated by the section is to be filled in. Therefore, the true meaning of sub-section (1) of Section 53 of the Act is that any vacancy in the office of a Sarpanch, Upa-Sarparch, Chairman. Vice-Chairman or a member of a Panchavat must be filled in by election. The said provision is mandatory. It is provided in the first Proviso that if no member is so elected the competent authority shall appoint a -person qualified to be elected. The said proviso is thus connected with the substantive Part of the section and is dependent upon it. The substantive portion of the section and the first proviso are interconnected and the duty of the Court is to give to the said proviso as far as Possible a meaning so as to bring it within the ambit or purview of the section itself. So construing the substantive Part of the section and the proviso of Section 53((1) of the Act, what the provisions mean is, that in case of a vacancy of a member of a panchayat, the same must be filled in by holding an election. The proviso gives power to the competent authority to fill in vacancy when no member is so elected. The pre-condition to exercise of power under Section 53 (1) of the Act by the competent authority is that election must be held and if no member is so elected the competent authority can exercise the power of appointment. The power of appointment thus cannot be exercised in case where there is no election. It is true that in the proviso it is stated that if no member is so elected within two months from the date on which notice of the vacancy is given to the competent authority the competent authority shall, as soon as possible, appoint a person who is qualified to be elected. But the period of two months mentioned therein is merely directory.
It is well settled that where the prescription of an Act relates to the performance of a duty by a public officer the breach of such prescription, when it does not cause any real injustice, does not invalidate the act done under the Act, and, therefore, such prescriptions are merely directory. In other words, where a Public duty is imposed and the statute requires that it shall be performed in a certain manner or within a certain time or under other specified conditions such Prescription may well be regarded as intended to be directory only when injustice or inconvenience, to others who have no control over those exercising the duty, would result, if such requirements were deemed essential and imperative. Such Provisions would be held to be directory even though the neglect of them is punishable so long as the validity of the acts done is not affected. See interpretation of statutes by Maxwell. 10th Edition, page 381. In the instant case the substantive provision of sub-see. (1) of Section 53 of the Act casts a Public duty on the officer to hold an election to fill In the vacancy. The ne0ect of this duty would cause injustice to the persons who had no control over them To hold the provisions relating to two months as mandatory would completely defeat or destroy the mandatory provision of the substantive Part of the section which directs that the election shall be held. A reference to the second proviso is essential as it throws light in the Interpretation or in gathering the legislative intention. It provides that a vacancy of a member occurs within four months preceding the date on which the term of the panchayat expires under Section 17, it shall not be filled. Thus the legislative intention that the vacancy referred to under substantive sub-section (1) shall not be filled in during the Period of 4 months preceding the date on which the term of the panchayat expires. Why the legislature provided for four months in this proviso instead of two months? If the legislative intention is that the vacancy is to be filled in within two months by an election there seems to be no valid reason for such a provision in the second proviso. Therefore the period of two months mentioned in the first proviso is merely a directory and is enacted to give guidance to the officer concerned. It seems to us that any other interpretation or view would lead in many cases to result which could not have been intended by the legislature and entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of holding election. It is thus clear that pre-requisite of the exercise of the power of appointment conferred on the competent authority under the first proviso of the section is, that the election must be held and he can exercise that power in a case where no member is so elected. Only on the fulfilment of this condition an order of appointment of a member of a panchayat can be passed by the competent authority. To construe the proviso in any other manner would amount to destroy what the substantive portion has provided as it would result in giving an option to the authority to hold an election which the legislature has not intended. The election under Section 53 must be held without any undue delay. The legislature has enacted Rule 43 for the said purpose. The rule provides:
'43. Casual vacancies:- The provisions of these rules shall mutatis mutandis, apply to a bye-election provided that-
(i) no publication of lists of voters as provided in the case of a general election under Rule 4. shall be necessarv in the case of a bye-election.
(ii) the Periods prescribed in Rules 7, 11, 12 and 13 may be reduced to such extent as may be determined by the District Development Officer to complete the bye-election within the time limit prescribed in the first proviso to sub-section (1) of Section 53.'
It is true that the panchayat must have its full strength of members and must be run by all the members but the legislatrue also contemplated an eventuality wherein there may be a vacancy of a member in the panchayat and, therefore enacted Section 54 (3) Which provides that during any vacancy in a Panchavat the continuing members may act as if no vacancy had occurred. Therefore, the true construction of entire Section 53 (1) is -that any vacancy in the office of a member of a Panchavat shall be filled in by an election and if no person is so elected the competent authority shall appoint a person who is qualified to be elected. In the present case, it is clear that no election was held to fill in the vacancy on the erroneous construction of the order of the Government dated November 16, 1967. As no election was held the Taluka Development Officer, who was admittedly the competent authority had no Dower or authority to pass order appointing opponents Nos. 5 and 6 as members of the panchayat in Wards Nos. 1 and 4 and hence the said impugned order is bad and illegal.
7. The impugned order was sought to be supported as legal one on the basis of the provisions of Section 19 of the Act. So far as the said contention is concerned, it was raised in this Court for the first time by the learned advocates for the opponents. The provisions of Section 19 of the Act were not relied upon by the State when it filed an affidavit in reply to justify the impugned order. Reliance was placed in the said affidavit only on the Provisions of Section 53 (1) of the Act. Now Section 19 of the Act so far as relevant provides that if for any reason an election does not result in the return of the required number of qualified persons willing to take office then in case of a gram panchayat the district Panchavat or the competent authority until the district panchayat is duly constituted for the first time shall as soon as possible appoint from the persons qualified to be elected such persons as are necessary to make up the required number and the persons so appointed shall he deemed to have been duly elected to the panchayat. This section relates to a case in which for any reason an election does not return in the requisite number of qualified persons willing to take office. The strength of the members of the Gram-Panchayat has to be fixed under the provisions of Section 12 of the Act. In the present case it wag argued that the petitioner was elected from two wards. The person elected was the same. Thus the total number of persons elected was less by one. Thus the election did not result in the return of the required number of qualified person. Moreover the petitioner did not exercise his option under Rule 37 of the Rules, the effect of which was that his election in both the wards was void and the result was that the election did not result in the return of required number of qualified Persons. The consequence was that the authority mentioned in Section 19 of the Act had the Dower to appoint a qualified person as a member of the gram panchayat and that is exactly what is done in the present case contended the learned advocates. Now one has to turn to the scheme of the election as is clear from- various provisions of the Act and Rules. A notification of fixing date of holding of election has to be Published by the Taluka Development officer under Section 18 of the Act Under Section 323 of the Act, Power to frame rules relating to election are given and the rules have been framed. Rule 6 Provides for the appointment of a returning officer by the District Development Officer. Rule 7 authorises the Taluka Development Officer to appoint dates for various stages of election. Rule 8 relates to the nomination of the candidates and Rule 10 provides for the scrutiny thereof. Rule 12 provides for the withdrawal of the candid attire. R. 14 relates to uncontested election and failure to elect. The relevant Dart rule provides that in any electoral division in which no seat is reserved for women or Scheduled Castes or Scheduled Tribes, where the number of candidates duly nominated is equal to the number of seats to be filled in. the Returning, Officer shall declare the candidates so nominated to be duly elected and in respect of the remaining seats or where there is no candidate duly nominated in respect of all the seats, it shall be deemed that the election has not resulted in the return of the required number of qualified persons willing to take office Within the meaning of sub-section (1) of Section 19. Then there are provisions regarding the declaration of the result and the publication of the result of the election. It 37 of the Rules is as under:-
'37. If any Person is elected by more than one electoral division of the same Panchavat he shall by notice in writing signed by him and delivered to the Returning Officer, within seven days from the date of the publication of the result .of such election choose for which of these electoral divisions he shall serve and resign the other seat or seats. On such choice having been made the remaining seat or seats from which such Person has resigned, shall become vacant.
(2) Any intimation given under sub-rule (1) shall be final and irrevocable.
(3) If such a person does not make the choice referred to in sub-rule (1), the election of such person from such electoral divisions shall be void and all such seats shall become vacant.'
There is no provision in the Act or the Rules which prohibits a person from contesting, from two wards and. therefore, when a person contests from more than one wards and gets the highest number of votes therein be is to be declared elected from all the wards in which he had contested. The Returning Officer is bound to include his name in the notification declaring the result of the election in both the wards. In such a case the declaration and publication of the result of the election would show that at the election required number of candidates, had been returned. The Returning Officer has no authority to elect and determine that as the one and the same person has been elected from more than one ward he should be declared as not elected or to declare him of having been elected from one of the wards. Prior to the stage of publication of the result of the election even the successful candidate has not to exercise his option. The declaration and publication of the result of election would show the successful candidates in all the wards as elected candidates and that the required number of qualified persons have been returned. Therefore, it cannot be said that in such a case the election does not result in the return of qualified persons and the provisions of Section 19 of the Act cannot be applicable in such a me. Therefore, the arguments of the learned advocates that the competent authority had the power to appoint under the Provisions of Section 19 of the Act cannot be accepted, Moreover, in the present case at the time of election the District Panchayat was in existence. Under the proviso as of Section 19 of the Act the authority to appoint vests in the District Panchayat. In the instant case the impugned order is passed by the Taluka Development officer to whom the Taluka Panchayat bad delegated his power and therefore the same as not valid and lega1. The provisions of Section 19 can have no application when a person is elected from two wards and does not exercise his option as required by R. 37, because the said rule can templates a case wherein a seat was filled in and then is declared vacant. The case under Rule 37 obviously would be governed by the provisions of Section 53 of the Act. Thus the order passed by the Taluka Development officer is illegal and bad.
8. It was then contended that under Rule 37 of the Rules if any person is elected by more than one electoral division of the same panchayat he shall by notice signed by him and delivered to the Returning officer choose for which of these electoral divisions he shall serve and resign other seat or seats. The letter exercising the option has to be delivered to the Returning Officer and not to the Taluka Development Officer. In the instant case the letter dated December 11, 1967 was delivered by the petitioner to the Taluka Development Officer and not to the Returning Officer as required by R. 37 of the Rules and therefore it was contended that there was no valid exercise Of Option and the election of the petitioner from Wards Nos. 1 and 4 become Void and the seats became vacant which could be filled in by following the procedure under Section 53 (1) of the Act. It is true that under the provisions of R, 37 of the Rules the letter conveying the exercise of option has been delivered to the Taluka Development Officer. The rule does not cast any further duty on the Returning Officer. The rule only declares that if the option is not exercised the election of such person, from such electoral divisions shall be void. that is, shall be invalid from the seven days after the data of publication of the result of the election. The word 'void' has not the meaning of void ab initio but it means invalid. The said word is followed by the expression 'all such seats shall become vacant' which means that the seats did exist and have now become vacant. Reading Rule 37 and Section 53 together it is clear Chat on the receipt of the letter, the Returning Officer has to given notice to 1he competent authority in the prescribed manner vide rule 62 about the vacancy, so that the competent authority can exercise the power under the proviso. The Returning Officer, therefore acts as a mere post-office. In the instant case the competent authority under Section 53 (1) is the Taluka Development Officer and therefore, when the petitioner sent his letter dated December 11, 1967 to him the purpose of Rule 37 Of delivering the letter of resignation is substantial1y complied with and the letter of resignation intimating that petitioner had resigned from Ward No. 1 became effective from the said date. The petitioner was thus duly elected from Ward No. 4 and the seat in Ward No. I had become vacant which can be filled in following the procedure under Section 53 (1) of the Act.
9. The result is that it is declared that the petitioner is duly elected from Ward No, 4 and continues to hold the said office. The impugned order dated February 23, 1968 at Exhibit 'F' issued by the Taluka Development Officer appointing opponents Nos. 5 and 6 in Wards Nos. 1 and 4 respectively is invalid and bad in law and the same is quashed. The opponents are hereby restrained or forbidden from taking any further action in pursuance thereof. The rule issued on the petition is made absolute with costs.
10. Rule made absolute.