WANCHOO, C. J. - (1.) THIS is an application by Premsukh praying for the issue of a writ of mandamus, prohibition, or any appropriate direction, order or writ against the Gram Panchayat, Sargot and the State of Rajasthan.
(2.) THE applicant is a resident of village Sargot. His case is that a Gram Panchayat was first established in this village in July, 1943, under the Marwar Village Panchayats Act, 1939, for the period of three years. THE period was later extended and came to an end in 1949. THEreafter the Panchayat stopped functioning and no Panchayat was constituted for the years 1949, 1950, and 1951. THEn on the 6th of June, 1952, an election was held and the present Panchayat was constituted with Bhanwarlal as Sarpanch. This Panchayat has been acting since its constitution and in one case an ex parte judgment was pronounced against the applicant. THE applicant claims that the Panchayat is improperly constituted and had no jurisdiction to act at all under the Marwar Village Panchayats Act, 1945, and relies on the following grounds: - (1) that the population of village Sargot is below 1000 according to the census of 1951 and, therefore, no Panchayat could be established in that village without the express desire of the residents of the village and without consulting the Jagirdar, and as this was not done, the present Panchayat was improperly constituted; (2) that no notification as required under sec. 4 of the Marwar Village Panchayat Act, 1945, was ever published and, therefore, the Gram Panchayat was never established according to law; (3) that under rule 5 of the Marwar Village Panchayats Rules, a panch has to be at least 25 years of age before he can be elected and one of the panchas was below 25 years of age at the date of the election; (4) that according to rule 7 of the said Rules, two of the panches have to be literate in Hindi. THEse two included Bhanwarlal and as he is disqualified, being below 25 years of age, only one panch literate in Hindi was left in the Panchayat and, therefore, it was improperly constituted; and (5) that there were irregularities in the election and the rules framed for the purpose were not complied with and, therefore, the whole election was invalid and the said Panchayat was improperly constituted. The applicant further says that as soon as he came to know of the election, he represented the matter to the authorities. There was an enquiry into it but the Minister-in-Charge had not yet taken any action on the report of the enquiry. The applicant, therefore, prays that the Gram Panchayat being improperly constituted had no jurisdiction to decide the case which it did and the order of fine in that case against the applicant could not be enforced. The application has been opposed on behalf on the State and most of the points raised by the applicant have been traversed. Only on two points it is admitted that there was no compliance of the Rules namely, (i) that Bhanwarlal was below 25 years of age when he was elected as Panch, and (ii) that there was no beat of drum announcing the election as provided by the Rules. It is further urged that even if there was some irregularity in connection with the election of the Panches, the acts done by the Panchayat were saved by sec. 14 of the Panchayat Act. Lastly, it is urged that this Court should not act as an election tribunal in its extra-ordinary jurisdiction under Art. 226 of the Constitution and that there was provision under sec. 8 of the Panchayat Act whereby irregular election could not be set aside by the Minister-in-Charge. We shall take the first two points urged on behalf of the applicant together. The answer to the arguments in relation to these two points is, in our opinion, contained in sec. 2 of the Marwar Village Panchayat Act 1945. That section lays down that all Panchayats established before the commencement of this Act shall be deemed to have been established under this Act. This Panchayat was admittedly established in July, 1943, and the applicant says that it was to exist for three years in the first instance, i. e. , up to July, 1946. The Marwar Village Panchayats Act, 1945, came into force from the 1st of January, 1946. Therefore, this Panchayat was existing on the date that Act came into force and under sec. 2 of the Act, this Panchayat by the law deemed to have been established under the Act of 1945. As such it was not necessary to issue a notification under sec. 4 for that section was meant for establishment of new panchayat which were not in existence which the Act of 1945, came into force. Further, the provision in the Rules framed under sec. 75 of the 1945 Act, which required that where the population of a village was less than 1000, the Panchayat could be eastablished only if the inhabitants expressed a desire in writing to that effect and after consultation with the Jagirdar, did not apply to a pre-existing Panchayat like the present. It only applied to panchayats which were to be established for the first time after the coming into force of the Act of 1945. There is, therefore, no force in these two points urged on behalf of the applicant. We now take the 3rd and 4th points raised on behalf of the applicant together. Rules 5 and 7 provide for certain qualifications which the Panches must have before they have elected. According to rule 5, the Panch must not be under the age of 25 years. According to rule 7, at least two of the Panches in any Panchayat must be able to read and write Hindi. It is admitted on behalf of the State that one of the Panches who was latter elected as Sarpanch, namely, Bhanwarlal was below 25 years of age at the time of his election. His election was, therefore irregular. It is also admitted by the State that of the two Panches who were required to be literate under rule 7, one was Bhanwarlal so that if Bhanwarlal is removed or not taken into consideration, there will be only one Panch left who is literate. Learned counsel for the applicant urges that in view of these defects of constitution, the whole Panchayat must be held to be improperly constituted and, therefore it never had jurisdiction to function at all under the Act of 1945. On the other hand it is urges on behalf of the State that sec. 14 was enacted to meet such difficulties and it completely covers the case. Sec. 14 is as follows: - "no act of the Panchayat shall be deemed to be invalid by reason only of the fact that the number of Panches holding office at the time of performance of any such act was less than the number fixed under sec. 5 of the Act or by reason of any irregularity in the appointment of any Panch, Naib Sarpanch or the Sarpanch. Reference may also be made to sec. 9 which is as follows: - When any Panch dies, resigns or in removed, the vacancy caused thereby shall be filled up in the prescribed manner, provided that no vacancy in the panchayat shall render its proceedings illegal so long as the number of Panches in not reduced below three. " It is urged that sec. 14 will not apply where there is breach of the Rules relating to qualification of Panches. We are of opinion that sec. 14 is wide enough to include cases were Panches have been elected by mistake against the provisions relating to qualifications of Panches, The intention of the legislature seems to have been to see that the work of the Panchayat went on even though there might have been irregularities in the election of the members of the Panchayat Further, the provision of sec. 9 shows that the legislature intended that the Panchayat should continue functioning so long as at least three members of the Panchayat remained. Further it is clear that if, for example, one out of two literate Panches were to die, the remaining Panches could carry on and the acts of the panchayat would be valid in view of sec. 14 even though two Panches as required by rule 7 are not literate. We are, therefore, of opinion that the acts of the panchayat in this case must be held to be valid inspire of the fact that one of the Panches was elected irregularly because he was below 25 years of age and because that member made up the number of two literate Panches required under rule 7. The next point that is urged is that there were certain irregularities in the election, and the rules relating to the manner in which the election should be held were not complied with, and therefore, the entire election was invalid and all the Panches should be removed from membership of the Panchayat. This in effect is something different from saying that the Panchayat itself is improperly constituted. Suppose there are 12 members in a municipality and election petitions are filed against all of them after the elections, and also suppose that the election petitions are all allowed after a period of one year. But because of that it would not followed that municipal council was not properly constituted for the period of one year during which these 12 members acted while election petitions against them were being decided. In the same way, assuming that there were certain irregularities in the election in this case and at least two such irregularities are admitted, namely, that there was no beat of drum on two occasions though the rules provided that there should be such beat of drum, the Panchayat cannot be called to be improperly constituted. All that the applicant can claim is the right to life something analogous to an election petition before the proper authority. Learned counsel for the applicant urges that this Court is the proper place where the matter can be brought up by means of an applicant under Art. 226 and there is no other remedy available to the applicant. We are of opinion that this Court cannot be turned into an election tribunal relating to election of every member of village Panchayat in Marwar unless it can be clearly shown that there is no other remedy available. We feel that there is remedy available to the applicant under sec. 8 of the Act of 1945. That Act gives power to the Minister-in-Charge to remove any Panch or Sarpanch from his office for various reasons. One such reason is 'for any other sufficient cause. ' We are of opinion that this is wide enough to cover the case of irregularities during the election or the case of election of a person who was not qualified to be elected, and that the proper course for the applicant is to apply to the Minister-in-Charge. We find that he has actually done so and an enquiry has been made on his representation. His complaint seems to be that the Minister-in Charge has not passed orders even though 15 months or more have passed since the election. The reply of the State is that the representation was made in November, 1952, and an enquiry has been made and the State is aware that there is some defect in the constitution of the Panchayat and the matter is receiving the consideration of the Government. It is also urged that the Government has not refused the demand of justice and, therefore, there is no case for moving this Court. It may be accepted that there has not been an actual refusal by the Government to decide the representation made by the applicant. At the same time the matter is pending before the Government for a sufficiently long time and we trust that it will now be decided soon. After all if the Panchayat is improperly constituted to a certain extent as admitted by the State it should not be allowed to function for the whole of the period of three years for which it has been elected, with the help of sec. 14 of the Act of 1945. That would be an abuse of that section. In view of the fact that there is another remedy open to the applicant of which he has already availed and believing that the matter would now be decided by the Government as early as possible, we do not think it necessary to issue any writ to the Minister-in-Charge of Local-self Government. Lastly learned counsel urged that a suit of the kind which was filed before the Panchayat was not contemplated under sec. 18 of the Act of 1945, and the Panchayat had, therefore. , no jurisdiction to pass the order which it did. So far as that is concerned, it is enough to point out that if the applicant was dis-satisfied by the order of the Panchayat, he had his remedy under sec. 53 and should have availed himself of it. We, therefore, dismiss the application but in view of the fact that there has been delay undoubtedly in the disposal of the applicant's representation and of the admission of Government that there has been some irregularity in the constitution of the Panchayat, we order parties to bear their own costs. . ;