Jagat Narayan, J. - (1.)THIS is a petition under Art. 226 of the Constitution by one Sultan Singh challenging the co-option of respondents Nos. 7 to 12 as members of the Mahuwa Panchayat Samiti and the election of respondent No. 4 as Pradhan of the Mahuwa Panchayat Samiti. The petition was contested by Kishorilal respondent No. 7 who filed a reply.
(2.)THE facts are not disputed. THE Mahuwa Panchayat Block is constituted of 14 Panchayat Circles and one Tehsil Panchayat Circle. THE term of four out of these 14 Pan-chayats had expired when the co-option of the members of the Panchayat Samiti took place on 18th September 1959. Respondent No. 5 is the Sarpanch of one of these Panchayats namely Talchidi Panchayat. He however took part in the co-option of members. THEre were thus Sarpanches of 11 Panchayats and one Tehsil Panchayat who took part in the co-option. THEre were 12 candidates for co-option of six members. THEre were two groups amongst the members who voted, each consisting of 6 members. One group voted for one set of 6 candidates and other group voted for the other set of 6 candidates. As the votes were equally divided the candidates were co-opted by drawing lots. By chance 3 candidates of each group thus got co-opted. THE result was that on 23. 9. 59 when the election of Pradhan took place 9 persons voted for Sultan Singh petitioner and 9 voted for Bishambardayal respondent No. 4. Lots were again drawn and Bishambardayal was declared elected as the Pradhan.
General election to the Talchidi Panchayat was held on 16. 2. 55. The Panchayat so elected held its first meeting on 27. 2. 55. Before the expiry of its term of 3 years on 26. 2. 5. 8 the term was further extended by an order under Sec. 7 of the Rajasthan Panchayat Act. This extended term expired on 26. 2. 59. A fresh general election was held on 30. 4. 59 The election of the Sarpanch and other Panches elected at it was challenged in writ petition No. 178/59 and an interim order was issued by this Court restraining them from functioning as such on 6. 5. 59 which was confirmed on 20. 8. 59. That writ petition is still pending. Respondent No. 5 who was the Sarpanch of Talchidi Panchayat, the term of which had finally expired on 26. 2. 59, was allowed to take part in the co-option of members of the Panchayat Samiti. The term of the old Panchayat of Talchidi which expired on 26. 2. 59 was not extended under the Rajasthan Panchayat (Amendment) Act No. 30 of 1959 which came into force on June 13, 1959. Mangidass respondent No. 5 was thus no longer a Sarpanch of any Panchayat in the Mahuwa Block and was not entitled to take part in the co-option of members of the Panchayat Samiti.

As is clear from the narration of facts above the result of the co-option was materially affected by the unauthorised vote of Mangidass respondent No. 5. If he had not been allowed to take part in the voting 6 persons would have voted for one set of 6 candidates and only 5 persons would have voted for the other set of 6 candidates with the result that all the 6 persons supported by one group would have been co-opted. The result of the election of the Pradhan was also materially affected as all the 6 co-opted persons would have voted for the candidate of the group which had voted in their favour.

Two contentions have been raised on behalf of the contesting respondent. The first contention is that whatever irregularity or illegality in the co-option or election of Pradhan took place was cured be clause 3 (2) of the Rajasthan Panchayat Samitis and Zila Parishads (Adaptations and Temporary Provisions) Order 1959 which runs as follows: - "any action taken or thing done on or before the Second day of October, 1959, under or in pursuance of the provisions of the Act as modified by Sub-clause (l) of this clause shall be deemed to have been lawfully taken or done, notwithstanding anything to the contrary contained in the Act. " The above order purports to have been made by the Government in exercise of the power conferred by section 93 of the Rajasthan Panchayat Samitis and Zila Parishads Act 1959. That section runs as follows: - "special provisions for constitution of first Panchayat Samitis and Zila Parishads.- For the purpose of constituting first Panchayat Samitis and Zila Parishads under this Act by the 2nd day of October, 1959, the State Government may, by order published in the Official Gazette - (a) direct that this Act shall have effect subject to such adaptations, alterations and modifi -. cations as may be specified in the order, and (b) make such other temporary provisions as may be so specified. " In my opinion the provision of Cl. 3 (2) of the Rajasthan Panchayat Samitis and Zila Parishads (Adaptations and Temporary Provisions) Order 1959 is ultra vires the power con--ferred by the Legislature on Government under sec. 93 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959. Sec. 93 authorised the Government only to make specific amendments or alterations in the provisions of the Panchayat Samitis and Zila Parishads Act or to introduce specific new temporary provisions for the purpose of the first election. It did not authorise the Government to condone generally all irregularities or defects of non-compliance with the provisions of the Act. Cl. 3 (2) of the above Order therefore invalid and did not legalise the illegal co-option of respondents No. 7 to 12. The election of Pradhan which took place on 23 9-59 was also vitiated as the Panchayat Samiti which took part in the election was not properly constituted.

The second contention on behalf of the contesting respondent is that the petitioner had an alternative remedy by way of an election petition under sec. 13 or the Rajasthan Panchayat Samitis and Zila Parishads Act 1959 to challenge the election of the Pradhan. Under R. 3 (b) of the Rajasthan Panchayat Samitis' Pradhans and Up-pradhans, and Zila Parishads' Pramukhs and Up-pramukhs (Election Petition) Rules, 1959 published in the Rajasthan Gazette of September 22, 1959 it is laid down that the election of a Pradhan or Up-pradhan, etc. may be questioned on one or more of the following grounds : - (a) that such person had committed during or in respect of the election proceedings a corrupt practice as specified in rule 4; (b) that such person was declared to be elected by reason or the improper rejection or admission of one or more votes or for any other reason was not duly elected by a majority of lawful votes ; or (c) that such person was disqualified for election as Pradhan, Up-pradhan, Pramukh or Up-pramukh, as the case may be, under the provisions of the Act. It is contended that the ground on which the petitioner has challenged the election of the Pradhan in the present writ petition would be covered by ground (b) in the above rule ("or for any other reason was not duly elected by a majority of lawful votes" ). In my opinion an election petition is not an effective remedy for remedying the defects in the very constitution of the Panchayat Samiti. There is no procedure prescribed in the rules for setting aside an invalid co-option of members; The election tribunal is not authorised to set aside the co-option of any members even though it may come to a finding that the co-option was illegal. Nor has the Government got any power to set aside the co-option. An illegal co-option can only be set aside, by the High Court on a petition under Art. 226 of the Constitution. The remedy prescribed under sec. 13 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 not being an effective remedy in the present case it cannot be said that the petitioner had an alternative remedy.

I accordingly allow the writ petition, set aside the co-option of respondents Nos. 7 to 12 to the Panchayat Samiti Mauuwa and the election of respondent No, 4 a* Pradhan of the said Panchayat Samiti, and restrain respondent No. 5 from taking part in the proceedings of the Mahuwa Panchayat Samiti.

In the circumstances of the case I direct that the parties shall bear their own costs. .

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