Full Judgment Text
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PETITIONER:
STATE OF GUJARAT
Vs.
RESPONDENT:
JAMNADAS G. PABRI AND ORS. ETC.
DATE OF JUDGMENT03/10/1974
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
CHANDRACHUD, Y.V.
CITATION:
1974 AIR 2233 1975 SCR (2) 330
1975 SCC (1) 138
ACT:
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’
HEADNOTE:
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 1974.
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 in-
serted 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 Officer.
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,
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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 Counter-
affidavit 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 pan-
chayats were expiring on March 31, 1974, because;
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(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]
JUDGMENT:
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
1974.
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 of Panchayats.
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.
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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 far-
reaching changes in the original Act. The indirect
elections to the Taluka Panchayats were abolished and
provision was made for direct elections to all the Pan-
chayats. 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 15, 1974.
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
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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 sub-
section(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, be-
3 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 March, 1974;
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 their term;
(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
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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 pan-
chayatconcerned 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 elec-
tions, 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
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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.
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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
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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" ;
"profitable" advisable", "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
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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 counter-
affidavits 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 pleaded
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 consti-
tuencies 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 formu-
lation 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 expedi-
ent 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
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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 cate-
gorical 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.
V.P.S.
Appeals Allowed.
341