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Showing contexts for: moot problems in Mohanlal Nathubhai And Ors. vs R.M. Desai Development Commissioner, ... on 22 September, 1967Matching Fragments
10. The basis of the whole structure of the submission of Mr. Nanavaty is the construction that he has placed on the provision of Sub-section (1) of Section 47 and particularly the expression "the executive power for the purpose of carrying out the provisions of this Act". According to Mr. Nanavaty, as we have seen, the Sarpanch is the executive Lead and all executive powers save as otherwise expressly provided by or under the Act, for the purpose of carrying out the provisions of the Act, vest in the Sarpanch. So far it is not possible to say that there is any material flaw in the submission made. It is also true that Mr. B.K. Shah, the learned Advocate appearing for the respondents has not been able to point out to us that there is any other express provision either in the Act or under the Rules made thereunder, which can be said to curtail this power of the Sarpanch vested under the provisions of Section 47 in respect of the giving of a reply to the show cause notice given under Section 297 of the Act by the State Government or its delegate. But that by itself does not solve the problem before us. The moot question is, does the right given by Section 297 of having an opportunity of rendering an explanation to a show cause notice fall within the ambit of the expression "the executive power for the purpose of carrying out the provisions of this Act". If it does, then Mr. Nanavaty's reasoning and submission has to be accepted but if it does not, then the submission itself disintegrates and cannot stand. The construction canvassed for by Mr. Nanavaty is that the right of rendering explanation to the show cause notice given is by a provision of the Act, namely Section 297 and therefore when a reply is given by the Sarpanch, he does so in exercise of the executive power vested in him under Section 47 for the purpose of carrying out the said provision of the Act viz. that which is contained in Section 297. But this interpretation put by Mr. Nanavaty is not correct in our view. Whether a particular act falls within the ambit and meaning of "the executive act for the purpose of carrying out the provisions of the Act," necessarily depends upon the nature of the act concerned. The act with which we are concerned is not merely the ministerial act of replying to the show cause notice but it is the act of taking the decision as to how to repel the threat to the very existence of the Panchayat. The act of taking this decision is not the process of exercising any executive power for the purpose of carrying out the provisions of the Act. It is something ab extra to save the Panchayat as a corporate body from extinction. This is not an executive function of the Panchayat for the purpose of the carrying out of the provisions of the Act. This is an act done to preserve its existence to enable itself as a corporate body to perform its functions executive or otherwise for the purpose of carrying out the provisions of the Act. The expression "executive power" has not to be construed in isolation but has to be construed in context of the expression "for the purpose of carrying out the provisions of the Act" and also with regard to the nature of the act performed. In that light, the words "executive power" cannot the activity or act of the Panchayat for carrying out the provisions of the Act and not any Act or activity which is required for the very preservation of its corporate existence.