State of Gujarat Vs. Jamnadas G. Pabri
& Ors  INSC 192 (3 October 1974)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 2233 1975 SCR (2) 330 1975
SCC (1) 138
Gujarat Punchayat Act (1 of 1961) S. 17 (2)
and 303 A-Scope of Interpretation of statues Meaning of by reason of to hold
elections and 'expedient'
Section 17(2) of the Gujarat Panchayata Act,
1961, provides that the normal term of a panchayat is 5 years from the date of
its first meeting and that the term could be extended by the State Government
by a period not exceeding one year in the aggregate.
The 5-year term of the Taluka Panchayats and
the District Panchayats in the appellant-State were due to expire on February
28, 1973 and March 31, 1973 respectively. They were extended first upto August
31, 1973 and September 30, 1973 and then upto February 28, 1974 and January
Widespread disturbances broke out in the
State and the Governor promulgated an Ordinance by which the State Government
was given power to extend the terms of panchayats for 2 years instead of one.
On February 9, 1974, the State Ministry resigned and the President of India
assumed all functions of the State Government. The terms of the panchayat were
extended upto 31st March 1974.
The State legislature was dissolved on March
15, 1974 and Parliament passed the Gujarat State Legislature (Delegation of
Powers) Act, 1974. Under a. 3 of this Act, the President enacted Gujarat
Panchayats (Amendment) Act, 1974 which inserted s. 303A in the 1961 Act. On
March 31, 1974, the Government issued a notification under s. 303A, that
whereas the State Government is satisfied that a situation exists by reason of
disturbances whereby it is not expedient to hold elections for the
reconstitution of the panchayats, the State government orders that all the
powers and duties of taluka panchayats should be exercised by the Taluka
Development Officer and of the District panchayats by the District Development
The respondents who are presidents of
panchayats successfully challenged the notification in the High Court, on the
basis that the condition precedent to the exercise of the power under the
section was not satisfied.
Allowing the appeal to the Court,
HELD : (1) An analysis of s. 303A(1) shows
that before a declaration could be made thereunder, two requirements must be
fulfilled : (a) existence of a situation by reason of disturbances in the
State; and (b) the satisfaction of the State government relatable to such a
situation, that it is not expedient to hold elections for the reconstitution of
a panchayat after the expiry of its term. The first requirement is an objective
fact, which, if disputed, must be established objectively as a condition
precedent to the exercise of the power; and the second is an opinion or
inference drawn from that objective fact. It is a matter of subjective
satisfaction of the government and is not justiciable. Once a reasonable nexus
between such satisfaction and the facts constituting the first requirement is
shown, the exercise of the power by the government, not being colourable or
motivated by extraneous considerations, is not open to judicial review.
[335H-336B] (2) If the language of a statute is susceptible of two
constructions, the one fulfils the object is to be preferred to the alternative
which frustrates it. [337H] (3) In view of the particulars stated in the
Counteraffidavit it is clear that the disturbances in the State continued
throughout March 1974. Assuming that the disturbances abated after the dissolution
of the Assembly on March 15, 1974 the 331 abnormal situation, which was the
direct result of the disturbances must have continued to exist throughout March
1974. The section speaks of the existence of a Situation 'by reason of'
disturbances. The expression indicates that the 'disturbances' and the
'situation' must be proximately connected as cause and effect. it is sufficient
if the situation is the immediate outcome of the disturbances and that it
subsists. [336G-H] (4)The phrase 'to hold elections', understood in a wide
sense, will include all steps such as delimitation of the constituencies, the
compilation of electoral rolls etc which are a necessary preliminary to the
actual conduct of elections, whereas in a restricted sense, it would cover only
the actual holding of elections. The word 'expedient has also several shades of
meaning. It could not be contended for the respondents that the phrase should
be understood in the restricted sense, that is, that power under s. 303A is
exercisable only after the completion of preparatory steps preliminary to the
holding of an election, and that since that stage had not yet been reached in
the present case, the power could not be exercised. Section 303A has been
designed to enable the Government to get over a difficult situation surcharged
with dangerous potentialities and hence the Court must construe the expression
therein, in keeping with the context and object of the provision, in their
widest amplitude, and eschew an interpretation which attenuates the power or
impairs its efficacy. The statute places no fetter on the discretion of the
government in the exercise of the power. [338B-E, G] (5) Further the Court
cannot sit in appeal over the opinion of the State Government as to the
inexpediency of holding elections. All that the Court could enquire was,
whether the condition precedent, which is, an objective fact to the exercise of
the power existed. [338E-F] (6)The respondents could not also contend that the
impugned notification is not relatable to the situation existing by reason of
the disturbances and that the power wag exercised for an extraneous reason,
namely, that the terms of the panchayats were expiring on March 31, 1974,
(a)the reference to the ter= of the
panchayats in the impugned notification is only the recital of a feet which
constituted another facet of the situation arising out of the disturbances;
[339B-C] (b)the real and dominant reason for the exercise of the power is
contained in the 2nd paragraph of the notification namely, the existence of a
situation by reason of the disturbances; and [339B-C] (c)the counter-affidavit
on behalf of the appellant pleaded that the disturbances continued also in
March 1974 and that it was not expedient in the circumstances to hold elections
and that the efforts made by the government to hold elections were thwarted by
the supervention of the disturbances. [339D-E] (7)The purpose of s. 17(2) is to
ensure the continuity of the panchayats, where as the object of 8. 303A is to
confer powers regarding dissolution of panchayats in special situations.
Therefore, even if the Government had the power under S. 17(2) to extend the
terms of the panchayats, beyond March 31, 1974, it could not be said in the
circumstances of the case that in choosing to act under s. 303A government
acted maliciously. In the counter-affidavit on behalf of the government, it wag
stated that one of the demands of the agitators was that the terms of the
panchayats should not be extended further, This weighed with the government in
deciding that it was not politic in the then prevailing conditions to extend
the terms of the panchayats. Thus the government exercised its powers under s.
303A only because of the peculiar situation arising out of the disturbances.
[339H, 340 D-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1356-1357 of 1974.
From the Judgment and Order dated the 26th
June, 1974 of the Gjarat High Court in Spl. Civil Appls. Nos. 420 and 411 of
N.M. Phadke, M. N. Shroff and J. R.Nanawati,
for the Appellants (In both the appeals).
332 I M. Nanawati, P. H. Parekh, Sunanda
Bhandare and Manju Jaitley, for Respondent No. 1 (In CA No. 1356/74).
M.C. Bhandare, P. H. Parekh, Sunanda Bhandare
and Manju Jailley, for Respondents Nos. 1 and 9 (in CA No. 1357/74).
The Judgment of the Court was delivered by
SARKARIA, J.,-The main question that arises in these two appeals direct against
the common judgment, dated June 26, 1974 of the High Court of Gujarat, is,
whether the Notification dated March 31, 1974 (for short, the impugned
notification) issued by the State Government is invalid on the ground that the
condition precedent to the exercise of the power under s. 303A of the Gujarat
Panchayats Act, 1961,(for short, the Panchayats Act) is not satisfied.
The Panchayats Act provided for three-tiers
They were, in the descending order : District
Panchayats, Taluka Panchayats and Gram Panchayats. The Act provided for
indirect election to Taluka Panchayats and partly indirect and partly direct
election to the District Panchayats on the basis of Adult franchise Under s.17
(2) as amended by Gujarat Act, 8 of 1968, the normal term of a panchayat was
five years from the date of its first meeting. This term could be extended by
the State Government by a period not exceeding in aggregate one year.
The last election to Taluka Panchayats took
place in February 1968 and the Panchayats were constituted on February 28, 1968
Their term was due to expire on February 28, 1973. Similarly, the five year
term of the District Panchayats was due to expire on March 31 1973. By a
Resolution dated April 12, 1973, the State Government appointed a high level
Committee headed by Jhinabhai Darji to suggest basic reforms in the Panchayati
Raj set-up. On the interim recommendation of this Committee the State
Government extended the terms of Taluka Panchayats upto August 31, 1973 and
those of Distirct Pan chayats upto September 30, 1973. The Jhinabhai Darji
Committee submitted its final report on September 30, 1972. Thereupon,the
Gujarat (Amending) Act 9 of 1973 was passed. It came into force on April 23,
1973. This Amending Act made farreaching changes in the original Act. The
indirect elections to the Taluka Panchayats were abolished and provision was
made for direct elections to all the Panchayats. As it was not possible for
administrative reasons to hold elections in accordance with the amended Act,
the State Government by an order dated June 21, 1973, extended the term of
Taluka Panchayats and District Panchayats till August 31, 1973 and September
30, 1973 respectively. By another Order, dated October 3, 1973, the terms of
both these Panchayats were again extended upto February 28, 1973 Thus the power
of the State Government to extend the term of the Taluka Panchayats under s.
17(2) of the Act had exhausted itself.
In the first week of January, 1974,
widespread disturbances broke out in the State of Gujarat. There was public
agitation against the State Government demanding its resignation and the
dissolution of the Gujarat Assembly.
333 On January 26, 1974, the Governor of
Gujarat promulgated Ordinance 1 of 1974. It substituted in sub-s. (2) of s. 17
of the Act the words "two years" for the words "one year".
Under the amended provision the Government
got the power to extend the term of a Panchayat by two years in the aggregate
beyond its normal term of five years.
As a result of the mounting public agitation,
the State Ministry tendered its resignation on February 9, 1974. On the same
date, the President of India by a proclamation under Article 356 of the
Constitution assumed all the functions of the State Government.
By an order dated February 27, 1974, issued
under s. 17(2) as amended by Ordinance 1 of 1974, the terms of the Taluka
Parchayats and District Pancbayats were again extended upto March 31, 1974.
The State Legislature was dissolved on March
Parliament thereafter passed the Gujarat
State Legislature (Delegation of Powers) Act, 11 of 1974 which vested with
effect from March 27, 1974 powers of the State Legislature in the President of
India. In exercise of his powers under s. 3 of this Act, the President enacted
Gujarat Panchayats (Amendment) Act 8 of 1974 which came into force on March 31,
1974. It inserted s. 303A in the Panchayat Act which provides :
" 303A.(1) Notwithstanding anything
contained in this Act or the rules or by-laws made thereunder, if at any time,
the State Government is satisfied that a situation exists by reason of
disturbances in the whole or any part of the State of Gujarat, whereby(i) * * *
* (ii)It is not possible or expedient to hold elections for the reconstitution
of a panchayat on the expiry of its term;
the State Government may, by notification in
the Official Gazette; make a declaration to that effect.
(2)A notification issued under subsection(1)
in relation to any panchayat shall remain in force for such period, not
exceeding six months, as may be specified therein :
Provided that if the State Government is of
the opinion that it is necessary so to do, it may, by order and for reasons to
be mentioned therein, extend, from time to time, the period so specified, so,
however, that the notification shall not in any case remain in force for more
than one year in the aggregate.
(3)On the issue of a notification under
subsection (1) in reason to any panchayat,(a) all the members of such panchayat
shall vacate their office as such members;
(b) all the powers and duties of such
panchayat shall,, during the period when such notification is in force, be3 34
exercised and performed by such officer of the State Government as it may, by
order, specify in that behalf.
(4)The State Government shall, before the
expiry of the period specified in the notification issued under sub-section(1)
or extended under the proviso to sub-section (2), as the case may be, take
steps for the purpose of reconstituting the panchayat in the manner provided in
this Act." Purporting to act under s. 303-A, the Government issued on
March 31, 1974, the impugned notification "No KP/74-81 /PRN
(HLC)/4-JHI-Whereas the terms of all Taluka and District Panchayats in the
State of Gujarat except that of the Dangs District Panchayat expire on 31st
And Whereas the Government of Gujarat is
satisfied that a situation exists by reason of disturbances in the whole of the
State of Gujarat whereby it is not expedient to hold elections for the
reconstitution of any of the taluka and district panchayats whose term expires
on the aforesaid date;
Now, therefore. in exercise of the powers
conferred by Section 303A of the Gujarat Panchayats Act 1961 (Guj. VI of 1962),
the Government of Gujarat hereby(1)makes a declaration that a situation exists
by reason of disturbances in the whole of the State of Gujarat whereby it is
not expedient to hold elections for the reconstitution of any of the taluka and
district panchayats whose term expires on 31st March, 1974 on the expiry of
(2)directs that the declaration made as
aforesaid shall remain in force for a period of six months; and (3)orders that
all the powers and duties of each of the taluka and district panchayats whose
term expires on 31st March 1974, shall, with effect from the expiry of their
term till this notification is in force, be exercised and performed,(i)in
relation to a taluka over which the taluka panchayatof its term, by the Taluka
Development Officer postedunder the taluka panchayat concerned; and (ii)in
relation to a. district over which the district panchayatconcerned had
authority immediately before the expiry of its term, by the District
Development Officer posted under the district panchayat concerned.
By order and in the name of the Governor of
Gujarat R. B. SHUKLA, Secretary to Government." 335 Two writ petitions
under Articles 226 of the Constitution mere filed in the High Court of Gujarat
to challenge the aforesaid notification.. One of these was filed by the
President of Baroda District Panchayat Baroda etc. and the other by the
President of Jamnagar District Panchayat and ors. The petitions were heard by a
Division Bench which by a common judgment accepted the same holding that the
impugned notification "was illegal. invalid and bad in law because the
condition precedent to the exercise of the power under s. 303A viz., holding
elections for the reconstitution of the Panchayats on the expiry of their terms
has not been satisfied". Against that judgment, the State of Gujarat has
preferred these appeals on the strength of a certificate granted by the High
Court, The High Court held that "election" within the contemplation
of section 303A(1) is restricted to the process of the actual conduct of the
election, commencing with the issue of the notification calling the election
and terminating with the declaration of the result of the election. In its view
the delimitation of constituencies or wards, preparation of electoral rolls,
and framing of rules for conducting elections, being stages prior to the
election, do not form part of the process. of holding election. With this
narrow construction of the phrase "to hold elections", the High Court
approached, the problem thus "A reading to s. 303-A makes it clear that
the two objective facts are (1) the factum of disturbances in the, State by
reason of which a situation exists and (2) holding of elections for
reconstitution of panchayats.
Both these factors are open to judicial review.
The satisfaction of the Government with regard to the existence of a situation
by reason of the disturbances or in respect of non-possibility or inexpediency
of holding elections is subjective and not open to judicial review, The holding
of elections for the reconstitution of Panchayats is an objective fact. The
constitution 'of the panchayats is not only the objective fact but holding of
election thereto is an also objective matter. The State Government has to
establish both these points to justify invocation of power under s. 303A and to
justify the legality of the impugned notification. in the, instant case the
condition precedent of holding elections for the reconstitution of the
panchayats is not fulfilled. The stage of holding elections for the reconstitution
of the panchayats had not reached at the time when the impugned notification
was issued. On that date it was not possible to hold elections because
preliminary stages in connection with elections were not completed.
Constitution of wards, reservation of seats for women, scheduled caste and
scheduled tribes and voters' lists were not formed or made or prepared. in
absence of all these preliminary matters, the question of holding of elections
cannot arise." We are unable to agree with this reasoning. An analysis of
s.303A (1) would show that before a declaration referred to in that sub-section
can be made, two requirements must be fulfilled : (1) existence of a situation
by reason of a disturbances in the whole or any part of the State ; (2) the satisfaction
of the State Government relatable to such 336 a situation, that it is not
expedient to hold elections for the reconstitution of a panchayat on the expiry
of its term.
The first requirement is an objective fact
and the second is an opinion or inference drawn from that fact. The first
requirement, if disputed, must be established objectively as a condition
precedent to the exercise of the power. The second is a matter of subjective
satisfaction of the Government and is not justifiable. Once a reasonable nexus
between such satisfaction and the facts constituting the first requirement is
shown, the exercise of the power by the Government, not being colourable or
motivated by extraneous considerations,is not open to judicial review. Thus the
question that could be objectively considered by the Court in this case was :
Did a situation arising out of disturbances exist in the State of Gujarat on
the date of the impugned notification ? The fact that there were serious
disturbances throughout the State of Gujarat in January and in the first
fortnight of March, 1974. has not been seriously disputed by the learned
Counsel for the respondents. From the counter-affidavit filed on behalf of the
State, it appears that these disturbances continued throughout March, 1974.
Shri Satyendra Shah, Joint Secretary to Government of Gujarat has sworn that
"disturbances on a wide scale occurred in all parts of the State-both in
the urban as well as in the rural areas,. resulting in loss of human life and
considerable damage to property. This ultimately resulted in the resignation of
the Ministry on the 9th February 1974 and the issuance by the President of
India of a Proclamation under article 356 of the Constitution assuming to
himself all the functions of the State Government.......... The disturbances
continued also in March, 1974." in a further affidavit it is stated that
an agitation for dissolution of the Panchayats, whose normal terms of office
had expired, continued even in the last days of March, 1974.
An instance of Kutch Panchayat which on
account of such agitation, was unable to assemble for the budget meeting at
Bhui has been cited. Even Shri Jamnadas Pabri, one of the writ petitioners, who
was the President of that Panchayat, was not able to attend his office, on account
of these abnormal conditions in February and March 1974, except for one day.
in view of these particulars stated in the
counter-affidavit it is ,clear that the disturbances in the State of Gujarat
continued throughout March 1974, and even on the date of issue of the impugned
notification the situation in the State was anything but normal.
Assuming that the disturbances had abated
after the dissolution of the State Assembly on March 15, 1974, the abnormal
situation in the State, which was the direct product of the disturbances.
continued to exist throughout March '1974. Sufficient time was therefore,
required for the situation to limp back to normalcy. It is to be noted that s.
303A(1), speaks of the existence of a situation "by reason of"
disturbances. The expression "by reason of" indicates that the
'disturbances and the situation must be proximately connected as cause and
effect. The 'situation' envisaged by this sub-section, therefore, may not
necessarily be conterminous with the disturbances.
337 It is sufficient if the situation is the
immediate outcome of the disturbances, and it subsists. The situation after
such massive and violent disturbances would continue to be
"disturbed" for some time even after the-abatement or overt cessation
of the disturbances.
Mr. Phadke, learned Counsel for the
appellant-State contends that since the satisfaction of the Government as to
the inexpediency of holding elections was not a justiciable matter, the giving
of a wide or narrow meaning to the phrase "to hold elections" in s.
303A would not affect the point at issue. The High Court, it is contended,
erred in treating the completion of the preliminaries, such as compilation of
electoral rolls and formation of constituencies, virtually as a condition
precedent to the exercise of the power, though the only condition precedent
laid down by the statute which could be tested by objective standards was the
existence of the situation created by the disturbances.
Mr. Nanawati, learned Counsel for the
respondents (whose arguments have been adopted by Mr. Bhandare, appearing for
respondents 1 and 9), submitted that the High Court was right in holding that
the preliminaries such as delimitation of constituencies etc. belong to a stage
anterior to the conduct of elections and therefore do not fall within the ambit
of the phrase "to hold elections". The point pressed into argument,
is that s. 303A presupposed that the election machinery was ready and all the
preliminary steps for holding the elections, such as compilation of the voters'
lists and formation of wards etc., had been completed but the process of
election had not yet started when disturbances intervened. Since that stage had
not yet reached, the power could not be exercised.
It may be remembered that s. 303A is in the nature
of an emergency provision. It was designed to tide over a crisis of
unprecedented magnitude. "Reasons for the Enactment" issued by the
Government run as follows:"The extended terms of the Taluka and District
Panchayats in the State of Gujarat expire on 31st March, 1974. These Panchayats
have been functioning for more than one year after the expiry of the in normal
term of five years.
However, the recent disturbances in the State
have created an atmosphere which is congenial neither to the continuance of
these panchayats for a further period nor for holding elections for their
reconstitution. It is, therefore, considered necessary to entrust the
administration of these panchayats temporarily to officers appointed by the
State Government The present measure seeks to ...... empower the State
Government .... for carrying on the administration of the affairs of panchayats
in certain special circumstances...
Now it is wall-settled that if the language
of a statute is susceptible of two constructions, the one which fulfils its
object is to be preferred to the alternative which frustrates it. This canon is
of particular significance while interpreting an emergency measure of the kind
before 338 us. in a recent English case Cannon Street Ltd. v. Singer &
Friedlander Ltd. (1) While considering the uncertain language in a statutory
instrument made under an Act with the long title "An Act to authorise
measures to counter inflation". Meggary J. refused to put on it a
construction which would make the countering of inflation "so capricious
and easily escapable".
In the provision under consideration the
phrase "to hold elections" can be understood both in a wide and a
narrow sense. Its wide connotation will include all steps such as the
delimitation of constituencies, the compilation of electoral rolls etc. which
are a necessary preliminary to the actual conduct of elections. in the
restricted sense, this phrase would cover only the actual holding of elections.
Again, the word "expedient" used in this provision, has several
shades of meaning. In one dictionary sense, "expedient" (adj.) means
"apt, and suitable to the end in view", "practical and
efficient" ; "politic" ;
"fit, proper and suitable to the circumstances of the case". In
another shade, it means a device "characterised by mere utility rather
than principle, conducive to a special advantage rather than to what is
universally right" (see Webster's Now International Dictionary).
Since s. 303A has been designed to enable the
Government to get over a difficult situation surcharged with dangerous
potentialities, the Court must construe the aforesaid phrases in keeping with
the context and object of this provision, in their widest amplitude. Under the
provision the Legislature has given to the Government a discretionary power to
meet the challenge of an extraordinary situation arising out of the
disturbances. The Court therefore would eschew an interpretation which
attenuates that power or impair its efficiency.
Nor would the Court sit in appeal over the
opinion of the State Government as to the "inexpediency of holding
elections". The statute has made that matter the sole preserve of the
Government. All that the Court could enquire was, whether the condition
precedent which is an objective fact to the exorcise of this power, existed. By
no stretch of imagination could it be said that the power under s. 303 is
exercisable only after the completion of preparatory steps preliminary to the
holding of an election.
The statute places no such fetter on the
discretion of the Government to the exercise of the power. We, therefore,
negative the contentions canvassed by Mr. Nanawati.
Learned Counsel for the respondents next
contended that it has been the positive case of the State that the
preliminaries to the holding of elections required substantial time and that
was why ordinance 1 of 1974 promulgated on January 25, 1974 had conferred power
on the State Government to extend the terms of District and Taluka Panchayats
by one year more with effect from March 31, 1974 and February 25, 1974,
respectively. With reference to the first preamble of the impugned
notification, it is contended, that it shows that the power (1) (1974) 2 W. L
R. 545 (Ch. D.) 339 was exercised not because of any situation arising out of
the disturbances but for an extraneous reason, namely, that the terms of all
Taluka and District Panchayats were expiring on the 31st March 1974. In this
view of the matter, says the Counsel, the impugned notification is not
relatable to the situation existing by reason of the disturbances.
This contention also is devoid of force. In
the first place. the opening paragraph of the impugned notification is a
recital of a fact which constituted another fact of the situation arising out
of the disturbances. Secondly, the real and dominant reason for the exercise of
the power is contained in the 2nd paragraph of the notification (reproduced
earlier in the judgment). The circumstances and reasons which weighed with the
Government in issuing the impugned notification have been set out in the
counteraffidavits of the Joint Secretary, Mr. Shah. We have referred to the
same earlier. We will however like to point out that although it was stated
therein that Government, on being so advised, was of the view that after the
31st March 1974, the Government oil account of the cessation of the operation
of Ordinance 1 of 1974, would have no power to extend the terms of the
Panchayats further, it was pleased that as "the disturbances continued
also in March 1974, it was felt by the Government that it was not expedient in
the then circumstances to hold elections to the Taluka and District Panchayats.
In para 60 of the counter, the Joint
Secretary has explained how the efforts made by the Government to hold the
elections were thwarted by the supervention of the disturbances.
Avers he :
"I deny that no efforts were at all made
to hold elections of the Taluka Panchayats or the District Panchayats before
March 31, 1974. in fact the process of holding elections was initiated as early
as in August 1973, when the Development Commissioner called for the proposals
for the delimitation of constituencies from the Collectors. The Development
Commissioner had also instructed Collectors to consult talika Panchayats and
district Panchayats while formulating the proposals of delimitation of the
constituencies. An Assistant Development Commissioner visited most of the
districts to expedite the formulation of those proposals. In the meantime, the
terms of taluka panchayats and district panchayats was first extended upto
28-21974 and then extended upto 31-3-1974 as set out here above. However, due
to widespread disturbances throughout the State of Gujarat, the situation was
such that it was not expedient to hold elections for the reconstitution of any
of the taluka and district panchayats." In the counter it is also stated
that one of the demands of the agitators was that the terms of the panchayats,
who, had served more than their normal terms, should not be extended further.
That weighed with the Government in deciding that it was not politic in the
then prevailing conditions to extend the terms of the panchayats which on
account of the extensions had already been continued for an preiod of
7-M255Sup.CI/75 340 about seven years. The Joint Secretary made this point in
the counter by citing illustration of Baroda Corporation thus :
"The example of Baroda Municipal
Corporation where the term of that body was extended for the seventh year and
where corporators held to resign per pressure was also in the mind of the
Government. The Government accordingly decided in the overall interest of the
State and the Panchayati Raj not to extend the terms of taluka and district
panchayats." The averments in Paragraphs 2 and 6C (quoted above) in the
counter-affidavit of the Joint Secretary between themselves furnish a complete
answer to the contention advanced on behalf of the Respondents.
The further point canvassed by Mr. Nanawati
is that even assuming there were two powers with the Government in a situation
where elections could not be held, in whatever sense the word election is
construed, resort to a more drastic and undemocratic provision itself exhibits
matice in law. This argument was advanced before the High Court, also, and was
negatived. We also do not find any merit in it.
The Constitutional validity of the provisions
of ss. 303A and s. 17(2) has not been assailed before us. As rightly point out
by Mr. Phadke, S. 17(2) and 303A operate in separate fields. Their objects are
also different. Whereas the purpose of s. 17(2) is to ensure the continuity of
the panchayats, the object of s. 303A is to confer powers regarding dissolution
of panchayats, in the special situation created by the disturbances and to
enable the Government to carry on the administration of the affairs of the
panchayats through State officers, pending their reconstitution. It has been
repeatedly averred in categorical terms in the counters that the Government
exercised its power under s. 303A in view of the peculiar situation arising out
of the disturbances. Even if the Government had the power under s. 17(2) to
extend the terms of the panchayats beyond March 31, 1974, it could not be said
in the circumstances of the case, that in choosing to act under s. 303A, it had
acted maliciously, the operational fields of these two provisions being so
different and divergent. We would, therefore, overrule this contention, also.
These, then, are the reasons in support of
our Order, announced on 27th September., 1974, whereby we had allowed these
appeals and set aside the judgment of the High Court, leaving the parties to
bear their own costs throughout.
We hope that the Government will take prompt
measures to hold there elections expeditiously and will not use this judgment
as an excuse to postpone the elections indefinitely. On 27th September, 1974,
when we declared our order, we had asked Counsel for the State Government to
impress upon his clients the need, especially in the present climate, to
preserve the democratic processes.