Indian Kanoon - Search engine for Indian Law

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JAYANT PATEL)

1.The petitioner No.1, who is the Vice-President of Gandhinagar District Panchayat and petitioner No.2, who is the Voter of Taluka Panchayat of Umrala in Bhavnagar District, have approached this Court by preferring this petition, inter alia, for the relief to declare the provisions of Clause (3) of Ordinance No.2 of 2015 promulgated by the Governor of Gujarat as ultra vires Article 243E of the Constitution of India. Thereafter, additional prayers have been added by the draft amendment declaring Clauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgated by the Governor of Gujarat as ultra vires Article 243E and Article 243U(3) of the Constitution of India. The petitioners have also prayed to issue appropriate writ of mandamus, directing the State HC-NIC Page 2 of 89 Created On Wed Oct 21 23:59:34 IST 2015 Election Commission to declare the date of holding elections of Panchayats in the State of Gujarat forthwith in due compliance of the constitutional obligation flowing from Article 243E of the Constitution of India read with the provisions of Section 13 of the Gujarat Panchayats Act (hereinafter referred to as the "Act" for short).

19.There are two aspects of the matter; one is that holding of the elections of the Panchayats cannot be fully equated with the elections of the members of the Corporations and the obvious HC-NIC Page 19 of 89 Created On Wed Oct 21 23:59:34 IST 2015 reason is that the number of Corporations and the number of Municipalities would be much less in comparison to the number of Taluka Panchayat and the District Panchayats, whose elections are to be held by the State Election Commission. In the Press Note of the State Election Commission at Annexure-D, the said aspect is apparent. The Election Commission had to hold elections of 230 Taluka Panchayats and 31 District Panchayats as against the elections of six Corporations and 53 plus 3, total 56 Municipalities. The work can be said as about three times of elections of the Panchayats in comparison to elections of Corporations and Municipalities. Further, the Panchayat elections are in three-tier; one for the Gram Panchayat, second for Taluka Panchayat and the third for District Panchayat. Therefore, considering the huge span of work, the legislature had thought it proper, prior to the amendment of Section 15(1), to ensure that the elections are held of the members of the Panchayats in a manner resulting into reconstitution of the Panchayats not earlier than two months, but at the same time not later than HC-NIC Page 20 of 89 Created On Wed Oct 21 23:59:34 IST 2015 15 days from the expiry of its term. In our view, had the amendment not been made and Section 15(1) of the Act continued on the statute book the State Election Commission possibly was mandated by the State Legislature to initiate the process of election well in time, but the same has been done away by the amendment made by the Ordinance. It is true that Section 15(1) (amended) provides for holding of the election on the date, as may be fixed by the State Election Commission but subject to the provisions of Section 13 of the Act. Therefore, one can say that the mandate of holding of election prior to the expiry as per Section 13 read with Article 243E is not diluted, but if one compares Section 15(1) as prevailing then with the proviso with the amended Section 15(1), it can be said that the provisions were existed on the statute book in order to ensure timely election of large number of Panchayats in the whole of the State is diluted and could also be said as if not against the express provisions of Article 243E, but against the spirit of timely election as mandated by the constitution under Article 243E of the HC-NIC Page 21 of 89 Created On Wed Oct 21 23:59:34 IST 2015 Constitution.

21.Examining the matter further, it can be said that since the mandate of the constitution under Article 243E(3) is to hold the election before the expiry of the term of five years, it would be required for the State Election Commission even after amendment, under Section 15(1) to ensure that the process for holding of election of the members of the Panchayats is initiated at least 45 days in advance prior to the expiry of the statutory term of five years of respective Panchayats. We are inclined to take such view because of the two reasons; one is that as per HC-NIC Page 22 of 89 Created On Wed Oct 21 23:59:34 IST 2015 Rule 9 of the Gujarat Panchayat Election Rules, 1994, minimum span from the date of Notification until the result is declared is for 21 days. Further, as per Rule 3 of the Gujarat Taluka and District Panchayats President and Vice-President Election Rules, six days clear notice is required for holding of the first meeting and the Panchayat as per Section 63 and 77 of the Act. As per Section 63(4) for the first meeting of Taluka Panchayat and Section 77 for the first meeting of District Panchayat and even for Village Panchayat for the first meeting under Section 51(4), the outer limit for the first meeting is four weeks from the publication of the result of the members of the Panchayat. As observed earlier, 21 days is minimum span for various stages of election after the election is declared and four weeks are for the convening of first meeting. Accordingly, at least the Election Commission must initiate the process of election by publication of election programme, 45 days in advance. Then only minimum time gap as provided under the above referred Rules can be maintained and the Panchayats can be HC-NIC Page 23 of 89 Created On Wed Oct 21 23:59:34 IST 2015 reconstituted as mandated by Article 243E(3) of Constitution. It would not be out of place to mention that though Section 15(1) is amended, but there is no simultaneous amendment in the Rules. Therefore, while operating section Rule also will have to be respected and followed. Hence, we are inclined to read down section 15(1) (amended) in a manner that the State Election Commission, should and must at least begin with the publication of the election programme prior to 45 days from the expiry of the term of the Panchayats. If there is any failure on the part of the Election Commission to initiate the process of election of the Panchayats as observed earlier, any citizen aggrieved by the said inaction of the Election Commission should be at liberty to approach this Court under Article 226 of the Constitution of India. In our view if amended Section 15(1) is read down accordingly, then only, in reality, the spirit and the mandate of Article 243E(3) of the constitution of completing the election and reconstitution of the Panchayats prior to the expiry of the term of five years shall be maintained. If section is HC-NIC Page 24 of 89 Created On Wed Oct 21 23:59:34 IST 2015 not read down accordingly and is left to the State Election Commission to decide it, such would not only lead unguided and arbitrary power to the Election Commission, but would also leave room for the Election Commission to fix up the dates of election, which may result into breach of the statutory rules. Under those circumstances, amended Section 15(1) can be rendered unconstitutional.

All the provisions in Part IX in relation to  panchayats   are   required   to   be   read  harmoniously.   There   can   be   no   manner   of  doubt   that   all   the   authorities   concerned  with the determination of number of seats in  panchayats   and   similarly   the   authorities  determining   the   number   of   seats   to   be  reserved   for   Scheduled   Castes,   Scheduled  Tribes   and   women   and   the   authorities   for  delimiting   the   wards   as   well   as   the  authorities   entrusted   with   the   task   of  HC-NIC Page 25 of 89 Created On Wed Oct 21 23:59:34 IST 2015 revision of electoral rolls are required to  keep   in   mind   the   mandate   enshrined   in  Article   243E(3)  of   the   Constitution.   While  the   Constitution   specifically   vests   the  superintendence,   direction   and   control   of  the preparation of electoral rolls for, and  the conduct of, all elections to panchayats  and   municipalities   in   the   State   Election  Commission, it does not at all mean that the  other authorities who are entrusted with the  task   of   taking   any   preliminary   steps   prior  to   the   Election   Commission   swinging   into  action,   are   not   to   obey   the   mandate  contained in  Article 243E(3)  and  243U(3)  of  the  Constitution.  The  Constitution   does  not  intend, and could not have intended, that if  any   authorities   other   than   the   State  Election Commission are not vigilant in the  timely  performance  of  their  functions,  then  the State Election Commission must watch the  scene   as   a   mute   and   helpless   spectator   and  cannot   swing   into   action   till   the   other  authorities   choose   to   issue   necessary  notifications   as   preliminary   steps   before  the   State   Election   Commission   can   commence  the election process.  Since the time limits    stipulated   in   the   provisions   of  Article         243E(3)    and   243U(3)        are   both   mandatory   and    peremptory,   the   State   Election   Commission  must   start   taking   all   the   necessary   steps  and   the   heavy   responsibility   cast   on   the  shoulders   of   the   State   Election   Commission  even   requires   the   Commission   to   request,  remind,   caution   and   alert   the   State  Government  and  other  authorities  for  taking  timely   action   to   see   that   all   the  preliminary   steps   are   taken   with   utmost  expedition   so   that   the   State   Election  Commission   can   then   commence   election  process within the time limit stipulated in  the   constitutional   provisions   and   also   in  the statutory provisions like Section 15 of  the Panchayats Act. (Emphasis supplied)