SCA 10602/2005 Judgment dated 29/09/2005 Page # 1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 10602 OF 2005 WITH SPECIAL CIVIL APPLICATION Nos. 10603 to 10605 of 2005 AND CIVIL APPLICATION No. 9030 of 2005 In SPECIAL CIVIL APPLICATION No. 10602 of 2005 For Approval and Signature: HON'BLE MR. JUSTICE M.S. SHAH AND HON'BLE MR. JUSTICE D.H. WAGHELA =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =========================================================== GUJARAT PRADESH PANCHAYAT PARISHAD - Petitioner(s) Versus STATE ELECTION COMMISSION & 4 - Respondent(s) =========================================================== Appearance : MR YATIN OZA SR ADVOCATE with MR TUSHAR MEHTA for petitioners. MR SN SHELAT ADVOCATE GENERAL with MR NV ANJARIA for Respondent No.1 MR KAMAL TRIVEDI ADDL. ADVOCATE GENERAL with Ms SANGITA VISHEN AGP for Respondent No.2. SCA 10602/2005 Judgment dated 29/09/2005 Page # 2 MR AD OZA GOVERNMENT PLEADER for Respondent No.3 CIVIL APPLICATION No. 9030 of 2005 =========================================================== HITESHBHAI KANTILAL BAROT - Petitioner(s) Versus STATE ELECTION COMMISSION & 5 - Respondent(s) =========================================================== Appearance : MR MIHIR JOSHI with MR SN THAKKAR for Applicant MR SN SHELAT ADVOCATE GENERAL with MR NV ANJARIA for Respondent No.1 MR KAMAL TRIVEDI ADDL. ADVOCATE GENERAL with Ms SANGITA VISHEN AGP for Respondent No.2; 2/1, 2/2, 4-6 MR YATIN OZA SR ADVOCATE with MR TUSHAR MEHTA for Respondent No.3 MR AD OZA GOVERNMENT PLEADER for Respondent No.7 MR VIJAY PATEL for HL PATEL ADVOCATES for BHARAT PATEL, Ex Sarpanch of THALTEJ GRAM PANCHAYAT (INTERVENER)================================================ =========== CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 29/09/2005 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) These petitions raise important questions about the nature of the time limits for holding elections to panchayats and the importance to be attached to the constitutional provisions for such time limits vis-a-vis the other constitutional provisions and the provisions of the Gujarat Panchayat Act, 1993 (“the Act” for brevity) in the matter of holding elections to panchayats and other institutions of local self-government. SCA 10602/2005 Judgment dated 29/09/2005 Page # 3 2. In May 2005, this group of petitions came to be filed by Gujarat Pradesh Panchayat Parishad (“Parishad” for brevity) and some of its members (two district panchayats and one taluka panchayat through its respective Presidents) for a writ of mandamus to direct the State Election Commission to complete elections to district panchayats and taluka panchayats in the State, by September 2005. The Parishad is a Society registered under the Societies Registration Act, 1860. All the Panchayats in the State at various levels are the members of the Parishad. The elected Presidents of District Panchayats are members of the executive committee of the Parishad. By letter dated 24.2.2005 (Annexure-A), the Parishad reminded the respondent-authorities of their duty to hold timely elections to Panchayats. By reply dated 9.3.2005 (Annexure-E), the Minister for Panchayats of the State Government replied that the Principal Secretary (Panchayats) is being instructed to take the necessary action. On 21.4.2005 there were newspaper reports in two leading Gujarati dailies that the Government will hold elections to Municipal Corporations and Panchayats in September 2005 within the time limit. However, all of a sudden on 11.5.2005, there was another newspaper report about uncertainty in holding elections as the State Election Commission was not informed to commence the process. The petitioners accordingly moved these petitions on 22.5.2005. 3. This Court issued notice on 1.6.2005. As far as the State Government is concerned, the only affidavit on record is dated 28.6.2005 stating that 60 gram SCA 10602/2005 Judgment dated 29/09/2005 Page # 4 panchayats have crossed the population limit of 15000 and, therefore, are to be converted into municipalities and, therefore, such conversion will affect the boundaries of taluka panchayats and district panchayats as well as the number of seats and voters for the purpose of elections to such panchayats. Hence the Delimitation Commission has been approached on 24.6.2005 for seeking its approval in view of the general ban imposed by it against alteration of existing boundaries of the taluka panchayats. After receipt of the approval from the Delimitation Commission requisite notifications will be issued as required by the provisions of Sec.10 and 11 of the Act declaring the number of seats and the percentage of reservation in various areas which will be done within about 15 days' time and thereafter it is for the State Election Commission to proceed in the matter for delimitation of wards, preparation and publication of electoral rolls and the conduct of the election process and its preparation. 4. On 1st August 2005 a statement was made on behalf of the State Election Commission that after the State Government issues notifications for this purpose the State Election Commission will take urgent steps to hold the elections in time and to see that no constitutional crisis comes up. The stand of the State Election Commission in the affidavit dated 5th/8th August was, inter-alia, as under:- “considering the fact that elections to large number of bodies of Panchayat as mentioned above were becoming due in October 2005 and considering the fact that the census figures of 2001 were already published, the State Election Commission addressed series of letters dt.18.3.2004, 25.5.2004, 10.8.2004, 24.9.2004, 31.1.2005, 23.2.2005, 19.3.2004, 19.4.2005, 24.5.2005 and 22.7.2005 to the State Government requesting and reminding about reservations of seats. .. Meetings were also held by the State Election Commission with the officials of the concerned department as well as officers of the Development Commissioner on 6.4.2004, 23.4.2004, SCA 10602/2005 Judgment dated 29/09/2005 Page # 5 19.7.2004, 28.9.2004, 19.11.2004, 6.11.2005 and 28.4.2005 in the matter and necessary prompt action was requested. ... It was not possible for the State Election Commission to commence its statutory task of formation of electoral divisions, namely the wards, of the Panchayat areas without the seats being determined and reserved by the State Government ... “ Reference was made in the affidavit to the provisions in Part IX of the Constitution and the Panchayats Act regarding readjustment of seats, delimitation of constituencies, reservation of seats, conversion of gram panchayats into nagarpanchayats where the population exceeds 15000 as per the 2001 census. It was also stated on behalf of the Commission that the entire process will take about NINE MONTHS i.e by 1st week of May 2006. The affidavit concluded with the following paragraph :- “I respectfully submit that while the State Election Commission has been alive to the need of commencing the election process, in conducting the elections it has to be guided by the law and the Rules framed by the State Government. Being bound by the legislative prescriptions in holding of elections, necessary notifications under Sec.10 and 11 of the Gujarat Panchayats Act, 1993 are awaited from the State Government before State Election Commission could proceed ahead.” Copies of various letters written by the Commission to the State Government in the Panchayats Department from 18.3.2004 onwards are also produced with the affidavit. 5. In the meantime, from 1st August to 12th August, 2005, the State Government issued notifications under Sections 10 and 11 of the Act determining the number of seats in various taluka panchayats and district panchayats and the seats reserved for different categories. On 10th and 12th August 2005, the State SCA 10602/2005 Judgment dated 29/09/2005 Page # 6 Government issued notifications converting 60 gram panchayats into municipal boroughs (nagar palikas) on the ground that as per the 2001 census figures the population of those areas had exceeded 15000 each and, therefore, they were required to be converted into municipal boroughs. In view of the said development in the additional affidavit filed on behalf of the Commission on 23.8.2005, it was stated that since the State Government had issued notifications dated 10th/12th August 2005, converting certain gram panchayats into municipal boroughs in various talukas and districts of the State, the State Election Commission will be in a position to complete the entire election process in respect of 23 district panchayats and 209 taluka panchayats by the third week of May 2006. SUBMISSIONS ON BEHALF OF THE PETITIONERS 6. When the petition reached hearing on 27th September 2005, it was urged on behalf of the petitioners that in view of the constitutional mandate enshrined in Article 243E(3)(a) and also in Section 15(1) (first proviso) of the Gujarat Panchayats Act, 1993 (“the Act” for brevity), the elections were required to be held before 5th/11th October 2005 or even earlier and, therefore, a writ of mandamus or at least interim directions were called for. It was also contended that the present petitions were filed in May 2005 just as SCA No.9847 of 2005 for timely elections to the Ahmedabad Municipal Corporation was also filed in May 2005, where the Hon'ble Supreme Court passed interim order on 13th September 2005 directing the Election Commission to complete the elections within the constitutionally ordained time limit in Article 243U(3)(a). SCA 10602/2005 Judgment dated 29/09/2005 Page # 7 SUBMISSIONS ON BEHALF OF THE AUTHORITIES 7. On the other hand, Mr SN Shelat, learned Advocate General appearing for the State Election Commission, Mr Kamal B Trivedi, learned Addl. Advocate General for the State of Gujarat and Mr AD Oza, learned Government Pleader appearing for the Delimitation Commission, had submitted that in the case of Ahmedabad Municipal Corporation, there was mere delimitation of wards by change of the boundaries of existing wards. But, in the present case, as many as 60 gram panchayats have been converted into municipal boroughs in view of the increase in their population as recorded in the 2001 census figures. It was submitted that as per the provisions of clause (f) of Article 243, “population” means the population as ascertained at the last preceding census of which the relevant figures have been published. The relevant figures were published in 2004. As per the provisions of Section 7(1) of the Gujarat Panchayats Act, 1993, the gram panchayat is to be constituted for a local area comprising of a revenue village or a group of revenue villages or hamlets, where the population of such local area does not exceed fifteen thousand. On the basis of the 2001 census figures, it transpired that 60 gram panchayats are to be converted into municipal boroughs. As per the provisions of Section 266B of the Gujarat Municipalities Act, 1963 such notifications were already issued on 10th/12th August 2005. It was, therefore, submitted that since such areas converted from gram panchayats into municipal boroughs are located in most of the districts of the State, those areas are required to be excluded from the areas of the respective taluka panchayats and also district panchayats and, therefore, the entire exercise of delimitation of wards for elections to the taluka panchayats and district panchayats has to be undertaken. SCA 10602/2005 Judgment dated 29/09/2005 Page # 8 Looking to the number of those panchayats – 23 district panchayats and 209 taluka panchayats – it is going to be a herculean task for delimiting the wards in all those district panchayats and taluka panchayats and at least six months' time will be required for completing this exercise. It was further submitted that since the 2001 census figures were already published in 2004 the delimitation process has already commenced, the elections to the district panchayats and taluka panchayats are required to be conducted on that basis in view of the various constitutional and statutory provisions. INTERIM ORDER DATED 27th SEPTEMBER 2005 8. In view of our decision dated 21st September 2005 in Special Civil Application No. 19047 of 2005 holding that the time limits stipulated in Articles 243E(3) and 243U(3) are not merely mandatory, but also peremptory, after hearing the learned Advocate General for the State Election Commission, learned Addl. Advocate General for the State Government and the learned Government Pleader for the Delimitation Commission, by our order dated 27th September 2005 we called upon the State Election Commission to indicate the earliest date by which the elections to the District Panchayats and Taluka Panchayats could be completed in October, 2005. That date was indicated as 28th October 2005 and we accordingly passed interim orders on 27th September 2005 recording that the elections to the District Panchayats and Taluka Panchayats in the State will be completed by 28th October 2005. We also granted interim stay of operation of the notifications dated 10th and 12th August 2005, by which 60 gram panchayats were converted into municipal boroughs and the consequential orders passed by the State Government, making it clear that the stay was to operate only for the purpose SCA 10602/2005 Judgment dated 29/09/2005 Page # 9 of holding elections to the concerned Taluka Panchayats and the District Panchayats, meaning thereby, those areas were not to be treated as excluded from the respective Taluka Panchayats and District Panchayats while holding elections in October 2005. We also observed that elections could be held on the basis of voters' lists revised in 2004 and for the constituencies determined on the basis of 1991 census. PLEA FOR RECONSIDERATION 9. Civil Application No. 9030 of 2005 has been filed by a resident of Bodakdev area, who was the Sarpanch of the erstwhile Bodakdev Gram Panchayat before the said area was converted from a gram panchayat into a municipal borough(nagarpalika) by Government of Gujarat notification dated 10th August 2005. The applicant has prayed for joining him as a party (which prayer has been granted by a separate order) and for recalling and modifying our order dated 27th September 2005 in the main petition and has prayed for a direction that the competent authorities be directed to first complete the exercise of delimitation of the wards keeping in mind the 2001 census figures within such time frame as may be fixed by this Court and that the elections of the panchayats to be held within one month thereafter or such period as may be fixed by this Court. 10. Before issuance of the notification dated 10th August 2005, Bodakdev was a part of the Daskroi Taluka in Ahmedabad district. The elections to the Daskroi Taluka Panchayat were last held in September 2000 and its five year term is to expire on 8th October 2005. In view of the mandate of Article 243E(3)(a) the elections to the Daskroi Taluka Panchayat are required to be held before the expiry SCA 10602/2005 Judgment dated 29/09/2005 Page # 10 of its duration i.e before 8th October 2005. Similarly elections to the other 208 Taluka Panchayats and 23 District Panchayats in the State are required to be held and completed by dates falling between 5th and 11th October 2005. 11. As per the provisions of the first proviso to sub-section (1) of Section 15 of the Gujarat Panchayats Act 1993, the elections of members of a Panchayat are required to be held within the following time limit:- 15. Election.- (1) The election of members to a panchayat shall be held on such date as State Election Commission may appoint in this behalf : Provided that - (i) in the case of reconstitution of a panchayat on account of the expiry of its duration of five years such date shall not be earlier than two months or later than fifteen days before the expiry of the duration. In view of the above statutory provisions the elections to the Daskroi Taluka Panchayat were required to be held by 23rd September 2005. The elections to the said Taluka Panchayat, Ahmedabad District Panchayat and also elections to all other District Panchayats (23 in number) and Taluka Panchayats (209 in number) in the State became due 15 days before expiry of the five year term i.e latest by 20th to 26th September, 2005. 12. Mr Mihir Joshi, learned counsel for the applicant in Civil Application No. 9030 of 2005 vehemently submitted that while the time limits stipulated in the aforesaid constitutional and statutory provisions are not unimportant, holding elections after delimitation exercise undertaken on the basis of 2001 census figures providing for equal representation by redistribution of the wards is more important SCA 10602/2005 Judgment dated 29/09/2005 Page # 11 than meeting with the constitutional or the statutory deadlines for holding elections to Taluka Panchayats and District Panchayats. Strong reliance is placed on the decisions of the Apex Court in In Re Presidential Poll, (1974) 2 SCC 33 and in Atma Singh vs. State of Punjab, (1981) 2 SCC 657 and in State of Maharashtra vs. Jalgaon Municipal Council (2003) 9 SCC 731. 13. Mr Vijay Patel appearing for a former ex-Sarpanch of Thaltej Gram Panchayat also supported the learned counsel for the ex-Sarpanch of the Bodakdev Gram Panchayat and contended that if the interim orders are not modified, complications are likely to arise in future. When the notifications dated 10th/12th August 2005 will operate, in view of Section 264 of the Act, a person elected as a member of a Taluka Panchayat or a District Panchayat may cease to hold the office as a member in that panchayat if the area which elected him is excluded from the respective Taluka Panchayat / District Panchayat. 14. In view of the importance of the issues raised in the petitions as well as in the Civil Application and also the urgency involved, with the consent of the learned counsel for the parties, we took up the matters for final hearing. CONSTITUTIONAL PROVISIONS 15. 243. Definitions – In this Part, unless the context otherwise requires,- (d) 'Panchayat” means an institution (by whatever name called) of self- government constituted under article 243B, for the rural areas; (e) 'Panchayat area' means the territorial area of a Panchayat; (f) 'population' means the population as ascertained at the last preceding SCA 10602/2005 Judgment dated 29/09/2005 Page # 12 census of which the relevant figures have been published. 243B. Constitution of Panchayats.- (1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part. (2) ... ... .. .... ... ... 243C. Composition of Panchayats.- (1) Subject to the provisions of this Part, the Legislature of a State may,. By law, make provisions with respect to the composition of Panchayats: Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State, (2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the member of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. (3) to (5) ... ... ... ... .. Article 243D provides for reservation of seats in favour of Scheduled Castes and Scheduled Tribes in proportion to their population in the concerned panchayat area and also for women belonging to the reserved categories to the extent of one-third of the total number of seats reserved for Scheduled Castes or, as the case may be, Scheduled Tribes. The same Article also provides for reservation in favour of women to the extent of one-third of the total number seats to be filled in by direct election in every panchayat. SCA 10602/2005 Judgment dated 29/09/2005 Page # 13 243E. Duration of Panchayats, etc. (1) Every Panchayat, unless sooner dissolved under any law for th time being in force, shall continue for five years from the date appointed for its first meeting and no longer. (2) ... ... ... .. (3) An election to constitute a Panchayat shall be completed - (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat. (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1), had it not been so dissolved. 243K. Elections to the Panchayats.- The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) ... ... ... ... .... (3) ... ... ... ... .... (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats. SCA 10602/2005 Judgment dated 29/09/2005 Page # 14 Article 243N give overriding effect to the provisions in Part IX of the Constitution over any existing law after a period of one year from the date of coming into force of these provisions. 243O. Bar to inference by Courts in electoral matters.- Notwithstanding anything contained in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any Court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State. There are similar provisions in Part IX-A of the Constitution in relation to the Municipalities for urban areas or for an area in transition from a rural area to an urban area (including Article 243U for duration of municipalities and stipulating time limit for completing elections). DISCUSSION ON THE NATURE OF TIME LIMIT FOR HOLDING ELECTIONS 16. On a bare perusal of the provisions of clause (1) of Article 243E, it is clear that unless sooner dissolved under any law, every panchayat shall continue for “five years from the date appointed for its first meeting and no longer”. Hence, under no circumstances, the panchayat can continue even for one day beyond its term of five years from the date appointed for its first meeting. Clause (3) of Article 243E stipulates the period to complete the election to constitute a SCA 10602/2005 Judgment dated 29/09/2005 Page # 15 panchayat - “before the expiry of its duration specified in clause (1)”. Hence, the emphasis in the words “and no longer” in clause (1) is also carried forward in clause (3)(a) of that Article to mean that “an election to constitute a panchayat shall be completed before the expiry of five years from the date appointed for its first meeting and no later”. 17.0 OBJECTS & REASONS FOR INSERTING PARTS IX AND IX-A IN CONSTITUTION 17.1 In the Statement of Objects and Reasons of the Constitutional Amendment Bill introducing Part IX in the Constitution in relation to panchayats, it was stated as under :- “Though the panchayati Raj Institutions have been in existence for a long time, it has been observed that these institutions have not been able to acquire the status and dignity of viable and responsive people's bodies due to a number of reasons including absence of regular elections, prolonged supersessions, insufficient representation of weaker sections like Scheduled Castes, Scheduled Tribes and woken, inadequate devolution of powers and lack of financial resources. ... ... ... In the light of the experience of the last