Punjab-Haryana High Court
Tarsem Singh vs Punjab State And Ors. on 27 March, 1996
Equivalent citations: (1996)113PLR193
JUDGMENT
N.C. Jain and B.R. Rai, JJ.
1. With the consent of the parties, the case has been taken up on regular board for final disposal.
2. The facts of the case lie in a very narrow compass and may thus be noticed. Kartar Singh who was elected as Sarpanch in the month of January, 1993, for five years, died on 25.9.1995. The office of the Sarpanch having become vacant, the petitioner filed an application before Block Development and Panchayat Officer, Block-Hoshiarpur-I District Hoshiarpur and District Development and Panchayat Officer, Hoshiarpur (respondents No. 4 and 3 respectively) for holding fresh election, in accordance with the provisions of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as 'the Act'). Learned counsel for the parties are agreed before us that Section 22 of the Act is the only relevant provision for filing up the vacancy in the case of death of a Sarpanch. Section 22 of the Act reads as under:
"22. Filling of casual vacancies, of Sarpanches and Panches. (1) Whenever a vacancy occurs by death, resignation, removal or otherwise of a Sarpanch or of a Panch the vacancy shall be filled up by way of election.
Provided that if the vacancy relates to the Scheduled Castes, Backward Classes or to Women the vacancy shall be filled up out of the persons belonging to the category to which category of persons the vacancy relates.
(2) A person elected to fill a casual vacancy under sub-Section (1) shall be elected for the remainder of his predecessor's term of office;
Provided that where the remainder of period for which a Panch or Sarpanch is to be elected is less than six months, it shall not be necessary to hold any election under this section to fill such a vacancy.
3. Section 22(1) of the Act clearly envisages that the vacancy caused by the death of a Sarpanch can only be filled up by way of an election of another Sarpanch. The holding of the election is mandatory in view of the use of word 'shall'. The intention of the legislature by enacting the aforementioned provision appears to bring the office of the Sarpanch on the same footing of a democratic set up which contemplates the election and election only. In case of Members of Legislative Assembly and Lok Sabha, bye-elections are held whenever vacancies are caused on account of the death or resignation of such members. The object as far as we can see is that the elected representative should not be substituted by a nominated Sarpanch against the will of the villagers. Had the legislature intended that the vacancy caused by the death of a Sarpanch should be filled up in any manner other i.e. by nomination etc. there was no impediment in its way to make a specific provision in this respect. The legislative mandate as has been manifested in sub-section (1) of Section 22 of the Act, need not, however, be followed in a situation where proviso applies. The only proviso which has been added by the legislature further mandates that in case the remainder of period for which a Sarpapch was to be elected is less than six months, it would not be necessary to hold an election under the provisions of sub-section (1) of Section 22 of the Act.
4. Admittedly, the new Sarpanch, if elected, in accordance with sub-section (1) of Section 22 of the Act, would have continued for much more than six months. In view thereof, respondent No. 6, Smt. Joginder Kaur, could not be nominated to act as a Sarpanch. Respondents No. 1 to 4, in view of the admitted factual position were under a legal obligation to initiate the process for electing the new Sarpanch and the proviso has got absolutely no application.
5. For the reasons recorded above, the present writ petition is allowed. Respondents No. 1 to 4 are directed to hold the election of a new Sarpanch within a period of three months from today. Till the election is held and new Sarpanch takes over, respondent No. 6, Smt. Joginder Kaur, would continue to hold the office of the Acting Sarpanch.
6. A copy of this judgment be given to the counsel for the parties on their paying requisite copying charges.