State of Gujarat v. Jamnadas G. Pabri and Ors. Etc.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366-1367 of 1974. From the Judgment and Order ciated the 26th June, 1974 of the Gujarat High Co.urt 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). SUPREME COUllT REPORTS J, M. Nanawati, P. H . .Parekh, Sunanda 11handare and Manju Jaitley, for Respondent No. 1 (In CA No. 1356/74). . M. C. Bhandare, P. Jl. Parekh, 81.nanda Bhandare and Martju Jaitley, for Respondents Nos. 1 and 9 (in ~A No. 1357/74). The Judgment of the Court was delivered by SARKAIUA, J.,-The main question that arises in these two appe.als direct against the common judgment, dated June 26, 1974 of the High Court of Gujarat, is, whether the Notification dated March 31, 19.74 (for short, the impugned notification) issued by the State Ge vernm~nt 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 ordel' : District Panchayats, Taluka Panchayats and Gram P,anchayats. The Act provided for indirect election to Taluka Panc)l.ayats and partly indirect and partly direct election to ~he District Panchayats on the basis of Adult franchise Under s. 17 (2) as amended by Gujarat Act, 8 of 1968, the n_ormal term of a panchayat was jive years from the date of its first meeting. This te!m could be ext¢nded by the State Government by a period not exceedmg in aggregate .one year. The last election to Taluka Panchayats tcok 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 fiveyear term o( the District Panchayats wa~ due to expire on March 31, 1973.

By a Resolution dated April 12, 1973, the State Go".Crnment appointed a high level Committee headed by Jhinabhai Darji to suggest basic reforms in the Panchayati Raj set-up. On the interim recc.mmendation of thl.s Committee the: State Government extended the terms of Taluka Panchayats upto Au.gust' 31, 1973 and those of Distirct Panchayats upto September 3,0, 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 tile original .(\ct. The indire:ct elections to the Taluka Panchayats were abolished an~ provision was, made for direct elections to all the Panchayats.

As. it was. not possible {or administrative reasons to hold elections in "Elccordance 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 anCI September 30, 1973 respectively.: By another Order, dated October 3, 1973, the terms of both these Panchayats were again extended upto February 28, 1974. Thus the po\ver of the Sta.ti: Government to extend the term of the Taluka Panc'hayats under s. 17(2) of the Act had exhau$ted itself. Jn the fir~rweek of January, 1974, widespread disturbances broke out in the State of Gujarat.. There was public agitation against the State Govcrbment demandir1g its resignaticn and the dissolution of the Gujarati Assembly. .GUJARAT v. JAMNADAS (Sarkaria, /.) On.January 26, 1974, the Governor of Gujarat promulgated Ordinance 1of1974. It substituted in sub-s. (2) ofs. 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 Febru'ary 9, 1974. On the same date, the President of India by a proclamation under Article 366 of the Cc mtitution assumed all the functions of the State Governn"ent. By an order dated February 27, 1974, issued under s. 17(2) as amended by Ordinance 1 of 1974, the terms of the Taluka Par:chayats and District Pai:J.chayats. were again extended upto March 31, 1974. The State Legislature was dissolved on March 16, 1974. Parliament thereafter passed the Gujarat State Legislatu1e (Dele~2.ticn of Powers) Act, ll of 1974 which vested with effect from Match 27, 1974 powers of the State Legislature in the PJesident 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· situatien · exists b)' re~on of disturban.ces 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 re-constitution ofa panchayat on the expiry of its term; the State Government may, by notification in the Official Garette; make a declaration to that' effect. (2) A notification issued under sub-rection(I) in relatic.n 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 thereill', 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 aggre- . gate. ~3) On the issue o~ a notification under sub-section (l) in relation to arty panchayat,- (a) all the ~m~ of such pa!lcltaya:t shall vacate their office as such mcm~ · · (b) all the powers o-4 duties of 111ch panchayat shall, during the period whtD nch notiftcAtion is in force, be .334 SUl'ltEME COURT REPORTS [1975] 2 s.C.It. ex-.rcised and p~rform0d by such _offi~r .of the State G:>v~rnm•mt as it may, by order, specify m that behalf. (4)

The State G:>wrnment shall, before the expiry C?f the p~riod sp~cified in the notification issued under sub-section(!) or extend~d under th~ proviso to sub-section (2), as the case miy b~, take steps for the purp:>se of reconstituting the panchayat in the manner provided in this Act." Purp)rting to act under s. 303-A, the G:ivernment issued on March 31, 1974, the impugn~d ne>tification : "No KP/74-81/PRN (HLC)/4-JHI-Whereas the terms of all Taluka and District Pancliayats in the State of Gujarat except that of the Dangs District Panchayat expire·on 31st March, 1974; And Whereas the G:rn::rnment 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 re1:·)nstitution of any of the taluka and district panchayats whose. term expires on the aforesaid date; Now, therefore. in exercise of the powers conferred by · Sectior. 303A of the Gujarat Panchayats Act 1961 (Guj.

VI of 1962), the G:>v<:rnm•mt of Gujarat hereby- (1) makes a declaration that a situation exists by reason of <iisturbances 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 p~riod ofgjx-m.onths; 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, witl). 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 panchaya.t concerned had authority immediately befort the expiry of its term, by the Taluka Development Officer posted under the taluka panchayat concerned; and (ii) in r~lation to a district over wh;ch the district panchayat concerned had authority immediately before the expiry of its term, by the District Development Officer posted under the district panchayat conccrmd. By order and irt the name of the Governor of Gujarat R. B. SHUKLA, Secretary to Government." GUJARAT v.' JAMNADAS (Sarkaria, /,)

Two writ petitions und~r Articles 226 of the Constituticn i~re. filed in the High Cou rt< Gujarat to challenge the aforesaid nctificatfon. One of these was filed by the President of Barcda District Panchayat Baroda etc. and the oth r by the President of Jamnagar District Panchayat and ors. The petitions were heard by a Division Btnch which by a common judgment accepted the same hclding that the in.rugned notification "was illegal, invalid and bad in law because the c< r.d1ticn precedent to the exercise of the power under s. 303A viz., holding el~c­ tions for the reconstitution of the Panchayats on the expiry ct their terms has not been satisfied". Against that judgment, the Statll ::of Gujarat has preferi:ed these ·appeals on the str,ngth of a certificate. granted by the High Court.

The High Court held· that "election" within the contemplation of section 303A(l) is restricted to the process of the actual ccr.duct of the election, commencing with the issue of the notificatic n calling the election and terininating with the declaraticn of the mult ct the election. In its view the delimitation of constituencies er wards preparation of electoral rolls. and framing of rules for conducting elec: tions, being stages plior tc the election, do not fcrm part of tht: rrccess 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 o bjectivo facts are (1) the. factum of disturbances in the. State by reascn of which a situation exists· and (2) holding of elections for reconstitution of panchayats. Both these factors arc open to judicial roviow.

The satisfaction of the Government with regard. to the existence of a situation by reason of the di&turbances 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 justif) invocaticn cf pcwer under s. 303A and to justify the legality of the impugned notification. In the instant case the condition p1ecedent ot hclding elections fc r the reconstitution of the panchayats is not fulfilled. The stage of holding elt:ctions for the 'reconstitution of the panchayats had not reached at the time when the impugned n<ttification was issued. On that date it was not possible to hold elections because preliminary stage~ in connection· with electicns were not cc mpleted.

Constitution of wards, reservation of seats for wcmen, scheduled caste and scheduled tribes and voters' lists were not formed or made or prepared. In absence of all th.ese preliminary matters, the question of holding of elections cannot arise." We are unable to agree with this rcl!iSoning. An analysis of s.303A (1) would show that before a declaration refo1red to in that sub-section can be made, two requirements ~ust ·be .fulfilled : (I) existence of a situation by reason of a disturbanecs in tho whole or any part of tho State ; (2) the satisfaction of tho State Government rclatable to such SUPREME COURT !REPORTS a situation, that it is 11Dt 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 Governmont 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 ~ing colourable or motivated by extraneous considerations.is not open to judicial review. Thus the question that could be objectively Gonsidered 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 b~en 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 scalo occurred in all parts of the State-both in the urban as well as in the rural areas, resulting in l.oss of hum·ut life and considerable damage to property. This ultimately resultod in the resignation of tho Ministry on the 9th February 1974 and the issuance by the President of India of a Proclamation under article 3S6 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 <>fthe Panchayats, whose normal terms of office had expired, continued even in the last days of March, 1974. An instance of Kutch Panchayat which on a.ccount of such agitation, was unable to assemble for the budget meeting at Bhuj 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 co.ndi- :tions in February and March 1974, except for one day. In view of th~se particulars stated in the counter-affidavit it is -claar that th: disturbance5 in the State of Gujarat continued throughout M1rch 1974, and even. on the date of issue of the impugned noti- 'fh:1tion the situation in the State was anything but normal. Assuming that the disturbances had abated after the dissolution of th~ State Assembly on March 15, 1974, the abnormal situation in th~ State. which was the direct product of the disturbances, continued to eicist throughout March 1974. Sufficient time was therefore. required for the situation to limp back to normalcy. It is to be notod that s. 303A(l), speaks of the existence of a situtation "by reason of" disturbance&.

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 :th,refore, m 1y not necessarily be coterminous with tho disturbanc:es'. GUJARAT v,, JAMNADAS (Sarkaria, /,) 33.7 ' It is sufficiont if the situation is the immediate outcome .of the disturbances, and it subsists.. The situation after such massive and violont disturbances would c:Ontinue to bo"disturbod'~ for some time evon after tho abatement or overt eessation of the distl.irbances. 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 wido or narrpw meaning to tho phrase "to hold elections" in s; 303A wollld not affect the point at iSsue. .

The High Court, it is contended, erred in trca~ing the completion of the preliminaries, Sl\Ch as compilation .of electoral rolls and formation . of constituencios, ·virtually as a . coq.dition precede11t to. the. exercise of the· power, though the only condition procedcnt laid '1own by tho statute which could . bo tostod by objective-standards was the oxistence of tho situation. created by the disturbances. Mr. Nanawati, learned .Counsel for the respondents (who~ argu- · ments have boen adopted by Mr. BJiandaro, appearing for :respondonts 1 and 9), submitted that the High Court was right in hol<ling that tho protiminaries such as delimitation of constituencies etc. belong to a stage. anterior to the conduct of elections and therefore do not fall within the anibit 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 prellininary steps for holding the elections, such as oompilation of. tho voter&' lists and formation of wards etc., had been completed but the process of election had not yet started when disturbances' intorvenod. Since that stago had not yet reached, the power could l)Ot be exercised. It may bo romembcred. that s. 303A is in the nature of an emergency provision. . It was designed to tide over a crisis of unprecedented magnitude. "Roasons for the Enactment" issued by the Governmont run as follows:- . ''The oxtended terms of the Taluka and District Panchayata in the State of Gujarat expire on 31st March, 1974. These Pancha1ats hav~ been fbiict1oning for moro than one year after the expiry ofthei,r normal tonn offive yoars.

However, the recent . disturbances in tho State have cre8led. an atmosphere which is congonial neither to the . c0ntinuanco of these panchayats for a f~her Jl!'riod nor for holding f;lections for their reconstitution.· It is; therefore, considered necessary to entrust the administration of, these. panchayats temporarily to officers appointed by .the State Governmont: ..••... The present measure seeks to ..... . . • • • .. empower tho State Government •... for carrying on tho administration of the affairs of panchayats in certain special circumstances .... "-- Now it is .well-settled that if. the _language of a statute is susooptfblo of two constr,uctions, the o~,wlUch fulfils its object is to be preferred to tho alternative which-frustrates it. Thia canon is of ~ilr significanco whilo interpreting an omorf)Ollcy measuro of the ltjnd before 33i SUPREME COURT Rl!PORTS us. In a r(:cent English case Cannon Street Ltd. v. Singer & Friedlander Ltd. (I)

While considering the uncertain language in a statutory instrument made under an Act with the long title "An Act to authorise measures to counte; 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 arid suitable to the circumstances of the ci~e".

In another shade, it means a device "characterised by mere utility rather than principle, conducive to a special advantage rather titan to what is universa.Uy right" (see Webster's New Int~rnational Dictionary). Sinco 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 conto11t 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 challe,nge of an extraordinary situation arising out of the disturbances. .The Court thorefore would eschew an interpretation which attenuates that power or impair its efficiency. Nor would the Cott.tt $it in appeal over the opinion of the State Government as to the "inexpedie11.cy of h0lding elections". The statute has made that mattor the sole preserve of the Government.

All that the C0urt could enquire '\'{as, whether the condition precedunt which is an objective fact to ithe exercise 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 discrotion of the Government to the exercise of the power. We, therefore, negative tho contentions canva&sed by Mr. Nanawati. . Le?.rned Counsel for the respondents next contended that it has been. the positive caso of tho 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 h?.d c0nferred p0wer on tho 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 tha power (I) (1974) 2 W. L. R. 545 (Ch. D.) GUJARAT v. JAMNADAS (Sarkaria, /.) 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 thi11 viow of the matter, says the Counsel, the impui:necl notHication is not relatable to the situation existing by reason of tits disturbances. This contention also is devoid of force. Iri the first place, the opening paragraph of the impugne~ notificaticn is a recital of z. fr.ct Y.hich constituted another fact of the situation arising out of the disturbances. Secondly, the real and dominant reason for the exercise cf the pcwer 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 hr.Ve been set out in the counter-affidavits of the Joint Secretary, Mr. Sh,-,h. We have referred to the same earlier. We will hcwever 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 Gcvcrnment 011. account of the cessation of the operaticn cf Ordinance I cf 1974, would have no power to extend the terms of the Panchayats further, it was pleaded that as "the disturbances contim:cd also in March 197<1, it was felt by the Government that it was not expedient ;n the thell circumstances to hold elections to the Taluka and District Panche:yats. In para 6c of the counter, the Joint Secretary has explained ho-ir the efforts made by the Government to hold the electic ns were tt,wartcd by the supervention of the disturbances. Avers he :

"I dony that no efforts were at all made to hold elections ef 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, whr.n the Development Ccmmissioner called for the proposals for the delimitation cf cc nstituencies from the Collectors. The Development CC'mmissioner had also instructed Collectors to consult tah ka P~.r:d.E.yats and district Panchayats while formulating the proposals cf delimitation of the constituencies. An Assistant Develcrment Commissioner visited most of the districts to expedite the fr rnn:- lation of those proposals. In the meantime, the terms of tatuka panchayats and district panchayats w~.s first extended upto 28-2- 1974 and then extended upto 31-3-1974 as set out hcre:n above.

However, due to widespread disturbances throughout the State of Gujarat, the situation was such that it was not exredicnt to hold elections for the reconstitution of any of the talukii and district panchayats." In the eounter it is also 1tate.d that one of the cfemands of the a!itators was that the terms of the panchayats, who had served more thall their normal terms, should not be extended further. That weighed with the Government in deciding that it was liot pC'llitic in th: then p1evailing conditions to extend the terms of tho pa.nchayats which 011 account of the extensions had already been continued fer a preiod of 7-Jd2SSSup.CI/7S SUPREME COURT REPO'.RTS about sev,m years. The Joint Secretary made this point in the co11nter by citing .illustration of Baroda Corporation thus : "The example of Baroda Municipal Corporation where the term of that bod1 was extended for the seventh year and where cJrporators had to resign per pressure was also in the mind of the Gwl}rnment.

The Government accordingly decided in the overall interast of the State and the Panchayati Raj not to extend the terms of taluka and district panchayats ." The averm~nts in Paragraphs 2 and 6C (quoted above) in the co:mter-affidavit: of the Joint s~cretary between themselves furnish a comulete 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 b} held, in whatever sense the word election is canstrued, resort to a more dra~tic and undemocratic provision itself exhibits m'l\ice 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 &li'O also diff;rent.

Whereas the purpose of s. 17(2) is to ensure the continuity of the panchayat:s, the object of s. 303A is to confer powers regarding dissolution of panchayats, in the special situation created by the disturb1nces 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 categoric1l term~ in the counters that the Government exerdsed its power under s. 303A in view of the peculiar situation arising out of the disturbances. Even if the Government had the power undet s. 17(2) to 'xten4 the term~ of the panchayats beyond March 31, 1974, it could not be said in the circumst1nces of the case, that in choosing to act under s. 303A, it had acted maliciously, the operational fields of these two prvvisions being so different and divergent. We would, therefore, overrule this contention, als9. Thllse, then, are the raasons in support of our Order, announced on 27th s~ptemb~r.

1974, whereby we had allowed these appeals and set aside the judgmr.nt of the High Court, leaving the parties to bear their own costs throughout. W i hopJ that the G:>vornm1Jnt will ta~ prompt measures to hold the e!ections,expeditiously aild will not use this judgment as an excuse to postpone the elcct!<>ns indefinitely. On 27th September, 1974, when we decla~ed ·our or~or, wt. had asked Counsel for the State Governm,nt to impren upon his clients the need, especially in the present climate!, to preserve the democratic processes. V.P.S. Appeals Allowed.