Indian Kanoon - Search engine for Indian Law

12. Shri Mahanta, learned Senior Counsel has submitted that on the failure of the State Election Commission to hold election for constituting Page No.# 24/39 the new GPs / APs / ZPs upon the expiry of its term, as per Article 243E of the Constitution of India, the State Government or the Deputy Commissioner could not have issued the impugned directions for taking custody of the properties of such GPs / APs / ZPs. It is contended that the petitioners ought to have been allowed to continue to hold their respective posts until the newly elected Body assumes office. It is submitted that when the petitioners are not at fault for not holding the elections in time, the option available to the State to allow the elected representatives to continue would be a better option by which the concept of decentralization of powers would actually be kept alive.

14. By referring to Article 243E of the Constitution of India, it is Page No.# 25/39 submitted on behalf of the petitioners that under Article 243E(1), the tenure of Panchayat has been laid down, which is five years. Under Article 243E(3) there is a mandate to hold and complete the election to constitute a Panchayat before the expiry of its duration which is five years. It is submitted that the aforesaid mandate of the Constitution of India has been grossly violated by the State and therefore, the petitioners cannot be made to suffer because of such failure on the part of the State.

24. The learned AG has also referred to the provisions of Article 243E of the Constitution of India wherein the duration of Panchayats have been laid down which is five years. It is submitted that when the constitutional mandate, as well as the Act in question has stipulated the duration to be five years, the prayer for extending the term beyond five years is not liable to be considered.

25. The learned AG has submitted that the case laws relied upon on behalf of the petitioners are distinguishable on facts as well as on the background. It is submitted that the case of Uttar Dhemaji (supra) was decided by taking into consideration certain decisions of the Hon'ble Kerala High Court and the Hon'ble Supreme Court in the case of Amrik Singh Vs. Union of India reported in AIR 1980 SC 1447 wherein it was laid down that concerned employee would not be victimized by the administrative lapses. Accordingly, in paragraph 14 (d) of the said judgment of Uttar Dhemaji (supra), a direction was given to allow the bodies to continue till the next elections are held. It is submitted that in any case, the aforesaid judgment is per incuriam the provisions of Article 243E(1) of the Constitution of India which appears to have been escaped the notice of the Hon'ble Court.

44. This Court is in agreement with the views expressed in the aforesaid case of Pub Mangaldai Anchalik Panchayat (supra). Further, apart from the facts under which the case of Uttar Dhemaji (supra) was decided being distinguishable, the said decision also appears to have been rendered on the basis of the certain decision on certain administrative default qua service law. It also appears that the aforesaid decision was rendered without taking into consideration Article 243E (1) of the Constitution of India. In any case, it is the constitutional mandate, as laid down in Article 243E (1) which will prevail.