Bhagwan Nagorao Betkar v. The State Of Maharashtra And Others
{1}
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD WRIT PETITION NO.5676 of 2016 Bhagwan s/o Nagorao Betkar Petitioner
Versus
State of Maharashtra & others Respondents Mr.S.T.Veer, advocate for the petitioner.
Mr.S.S.Dande, A.G.P. for Respondents No.1 to 3. CORAM : R.M.BORDE & K.L.WADANE, JJ.
DATE : 19th July, 2016 PER COURT:
Heard.
The petitioner is objecting to the election of Sarpanch of the village panchayat.
According to the petitioner, the Sarpanch, who was elected from General category, had passed away and as such, one seat of member had fallen vacant. The village panchayat consists of seven members and according to the petitioner, since the panchayat is not constituted with seven members, it was impermissible for the Collector to hold election for the post of Sarpanch.
Our attention is invited to Section 43 of the Maharashtra Village Panchayats Act, 1959, which provides for filling up of vacancies of a Sarpanch or Upa-Sarpanch. It
{2} prescribes that the meeting for the election of a Sarpanch under sub-section (1) shall be convened by the Collector in the manner prescribed in sub-section (1) of Section 33. Section 33(1) provides that on the establishment of a Panchayat for the first time under this Act, or on the expiry of the term of a panchayat a meeting shall be called on the date fixed under sub-section (1) of Section 28 by the Collector for the election of the Sarpanch and Upa-Sarpanch. In the case where the offices of both, the Sarpanch and UpaSarpanch, become vacant simultaneously, a meeting shall be called on the date fixed by the Collector, for the election of the Sarpanch and Upa-Sarpanch. Section 30(1) relates to election of Sarpanch. It provides that every Panchayat shall be presided over by a Sarpanch who shall be elected by, and from amongst, the elected members thereof.
It is the contention of the petitioner that since election of the Sarpanch shall be from amongst the elected members of the panchayat and there is vacancy of one member, it is not permissible for the Collector to hold election for the post of Sarpanch. Section 11(2) provides for filling up the vacancies that may occur during continuance of the term.
The contention raised by the petitioner is not acceptable and such view has been recorded in number of judgments of this Court. Section 10 of the Act prescribes for constitution of the panchayat. Section 10(1)(a) provides that a panchayat shall consists of, such number of members not being less than seven and not more than seventeen as the State Government may prescribe, who shall be elected in accordance
{3} with Section 11. A panchayat shall consists of at least seven members. However, sub-section (4) of Section 10 provides that notwithstanding anything in sub-section (1) where 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) are elected, failure to elect the remaining members shall not affect constitution of the panchayat. A panchayat, in spite of vacancy occurred in total number of members, shall be deemed to have been validly constituted if two-thirds or more of the total number of members occupy the office.
Since the village panchayat is duly constituted as more than two-thirds or more of the total number of members are occupying the office, it is the statutory duty of the Collector to hold election for the post of Sarpanch within prescription of the Act of 1959. The challenge raised in the petition is devoid of merits. Writ Petition stands dismissed.
K.L.WADANE R.M.BORDE JUDGE JUDGE adb/wp567616