Jugraj v. Rajasthan State — 1955 DIGILAW 354 (RAJ)

Wanchoo, C. J. —This is an application under Art.226 of the Constitution by Jugraj, and arises in the following circumstances : 2. The case relates to village Osia in which a Panchayat had been established under the Marwar Village Panchayat Act of 1945 (hereinafter called that Marwar Act). From the 1st of January, 1954. The Rajasthan Panchayat Act, No, XXI of 1953, (hereinafter called the Act) came into force. A notification was issued under the Act for the establishment of a Panchayat consisting of two village namely Osia and Dhunaria, Thereafter, elections were held to this Panchayat of the two villages, and certain persons were elected. The applicant contends that under sec. 93(2) of the Act the Panchayats established under the Marwar Act were deemed to have been established under the Act from the date of its commencement, i.e. 1st of January, 1954. Therefore, it was not open to the State Government by means of a notification, dated 13th November, 1954, to establish another Panchayat consisting of Osia and Dhunaria, and that if the State Government wanted to add any area to the Osia Panchayat it should have taken action under sec 86 of the Act. No action was, however, taken under sec. 86, and as the notification of the 13th November, 1054, establishing one Panchayat for two villages namely Osia and Dhonaria really amounted to adding further area to the existing Panchayat of Osia, the establishment of a Panchayat for Osia and Dhunara was ultra vires of the powers of the State Government. A similar application relating to the Panchayat of Bar came to this Court, and was decided by a Bench, of which one of us was a party on the 6th of September 1955; vide Bhomaram vs. State of Raj.(l) It was held in that case that it was not open to the State Government to add areas to existing Panchayats without recourse to the provisions of sec. 86 of the Act, and as that was not done in the case of the Panchayat at Bar, the re-constitution of the Bar Panchayat by addition of certain other villages to it was held to be against the provisions of the Act. 3. Since then an Ordinance has been issued by His Highness the Raj Pramukh, which is titled as the Rajasthan Panchayat (Amendment Ordinance (No. 15) of 1955 (hereinafter called the Ordinance). 3. Since then an Ordinance has been issued by His Highness the Raj Pramukh, which is titled as the Rajasthan Panchayat (Amendment Ordinance (No. 15) of 1955 (hereinafter called the Ordinance). It came into force at the end of October, 1955. The question, therefore arises whether in view of this Ordinance the decision in Bhomarams case remains good law or not. 4. The Ordinance consists of four sections, but we are concerned with sec. 3 by which two sub-sections have been added to sec. 93 of the Act. These additional subsections are follows— "(3) In making direction for the re-constitution of a Panchayat under sub-sec. (2) the State Government may order any area to be included in or excluded from the Panchayat circle of such Panchayat and may issue further directions as to the number of Panches of the Panchayat for the altered area and as to other matters relating to such reconstitution and re-election of Panches thereto; and nothing in sec. 86 shall apply or be deemed ever to have ; applied to such i inclusion or exclusion. "(4) Notwithstanding any defect or lack of form, procedure, jurisdiction or power and notwithstanding any thing contained in any judgment, decree or order— (i) all Panchayats of the category specified in sub-sec.(2), which have been notified after the commencement of this Act to have been established under sec. 3 or to have been reconstituted under sub-sec. (2) of this section shall be deemed to have been reconstituted, as respects their Panchayat circle, under sub-sec. (2) read with sub-sec. (3), of this section, and (ii) all orders made under sec. 4 as to the number of Panches of such Panchayat or as to other matters relating to the re-constitution of such Panchayats and the re-election of Panches thereto as well as all elections held in pursuance of such orders shall be deemed to have been made, or held, as the case may be, under sub-sec. (3) of this section." It has been provided in sec.3 of the Ordinance that the new sub-sections shall be deemed always to have been inserted in the Act so that the position now is that sec. 93 of the Act must be held to consist of four subsections from the very beginning including the two new sub-sections added by the Ordinance. By the new sub-sec. 93 of the Act must be held to consist of four subsections from the very beginning including the two new sub-sections added by the Ordinance. By the new sub-sec. (3), the State Government has been given the power, when ordering re-constitution of a Panchayat under sub-sec. (2) of sec. 93, to include or exclude any area from the Panchayat circle of such existing Panchayat, and also power to give directions as to the number of Panches of the Panchayat for the altered area and as to other matters relating to such re-constitution and re-election of panches thereto. It is further provided that nothing in sec. 86 shall apply or be deemed ever to have applied to such inclusion or exclusion. 5. It is obvious that if sub-sec. (3) is valid, the application must fail for this subsection must be deemed to have come into force from the 1st of January, 1954, and the re-constitution under the notification of the 13th of November, 1954, must be deemed to have been made under this sub-section. Further, it is specifically provided in the new sub-sec. (4) that all Panchayats of the category specified in sub-sec. (2), which have been notified after the commencement of the Act to have been established under sec. 3 or to have been reconstituted under sub-sec. (2) of this sub-section shall be deemed to have been reconstituted, as respects this Panchayat circle, under sub-sec (2) read with sub-sec.(3) of this section, and all orders made under sec. 4 as to the number of Panches of such Panchayat or as to other matters relating to the re-constitution of such Panchayat and the re-election of Panches thereto as well as all elections held in pursuance of such orders shall be deemed to have been made, or held as the case may be, under sub-sec. (3) of this section. These two sub-sections therefore validate what was done by various notifications of Government in October or November, 1954, and in fact supersede the judgment of this Court, dated 6th of September, 1955. Therefore, unless the Ordinance itself is ultra vires this application must fail. 6. It has however been urged that the Ordinance is invalid as it is hit by Art. 14 of the Constitution. The argument is that discrimination is made between new Panchayats established under sec. 3 of the Act and the existing Panchayats continued under sec. 93(2) of the Act. 6. It has however been urged that the Ordinance is invalid as it is hit by Art. 14 of the Constitution. The argument is that discrimination is made between new Panchayats established under sec. 3 of the Act and the existing Panchayats continued under sec. 93(2) of the Act. The discrimination is that in case of Panchayats established under sec. 3 if any change in the area of such Panchayats is to be made the procedure provided under sec. 86 has to be followed, while in the case of Panchayats continued under sec. 93 2) such procedure has been definitely excluded by sub-sec.(3) to sec. 93. That is undoubtedly so, but there is clearly a principle of classification discernible in this case between Panchayats which were existing on the date the Act came into force and Panchayats which were to be established after the Act came into force. In order to maintain continuity it was necessary that the existing Panchayats in those areas of Rajasthan where they were in existence should be continued, and sec. 93 (2) provided for continuance of such Panchayats for the time being. But as these Panchayats were established under various Acts with different provisions in various parts of Rajasthan, power was given to the State Government to re-constitute such Panchayats. Some of them, according to the legislatures command, were to be necessarily reconstituted namely those which were not elected on adult franchise. Others, which were elected on adult franchise, were to be reconstituted at the discretion of the State Government. But It was obviously necessary to continue the existing Panchayats till this matter of reconstitution could be gone into as it was bound to take time. The old Panchayats thus continued from the 1st of January, 1954, under the Act, and were gradually reconstituted under sec. 93(2). What is the from of that re-constitution has now been made clear by new sub-sec.(3) of sec. 93. We, therefore, see no ground for holding that merely because the procedure of sec. 86 is not to apply to the existing Panchayats, there was any discrimination at between the existing Panchayats and the Panchayats to come into existence in future, for after the reconstitution of the existing Panchayats under sec. 93(2), the provisions of sec. 86 would apply to such reconstituted Panchayats also in future It cannot be said therefore that this provision contained in sub-sec. 93(2), the provisions of sec. 86 would apply to such reconstituted Panchayats also in future It cannot be said therefore that this provision contained in sub-sec. (3) is hit by Art. 14. 7. Another argument based on the same Article is that sub sec. (2) of sec. 93 gives unfettered powers to the State Government to reconstitute or not to reconstitute such existing Panchayats as were elected on adult franchise, and that this will lead to discrimination, and therefore the provision is hit by Art. 14. In this connection reliance was placed on Thakur Madhosingh vs. State of Rajasthan (2), and Rao Manohar Singh vs. The State of Rajasthan(3). It is enough to say that there is no force in this contention either. The two cases relied upon by learned counsel and the facts on which those two case are based are, in our opinion, clearly distinguishable. In Thakur Madhosinghs case(2) the question was about the application of a certain Act to certain areas in Rajasthan, and it was conten-ded that there was no guiding principle anywhere in the Act controlling the discretion of the state Government as to the application of the Act to particular areas in Rajasthan. The Act dealt with agricultural rent and this infringed on the right of landlords to collect rent from their tenants. It was in those circumstances held that the absence of a guiding principle gave unfettered power to the State Government, which was liable to be abused. In Rao Manohar Singhs case(2), the provision which was struck down was about exemption of certain persons from the provisions of the Excise Act. It was held that it gave unregulated and unbridled power to the Government by which it would be open to it to exempt any person whatsoever from the opera ion of the Act as contra-distinguished from any other person without any rhyme or reason. The provision was thus liable to abuse, and might be used as a weapon of favouritism by the State Government. 8. The present provision is in our opinion not subject to the same defects and is not liable to abuse. Nor does it infringe the right of any private individual. The provision was thus liable to abuse, and might be used as a weapon of favouritism by the State Government. 8. The present provision is in our opinion not subject to the same defects and is not liable to abuse. Nor does it infringe the right of any private individual. Establishment of a Panchayat for a certain area depends upon a number of considerations which it is very difficult to lay down in an Act of the legislature Discretion has therefore to be left to the executive in matters of this kind, and where such discretion is not per se liable to abuse, there is no reason why it should be said that the discretion left is a kind of unregulated and unbridled power conferred on the executive. We may in this connection point out that in sec 3 also the same discretion is left with the executive. That section gives power to the State Government in its discretion to establish a Panchayat for a village or group of villages not included with in the limits of a municipality The time and place of establishment of Pan-chayats is thus left to the discretion of the State Government, and it cannot be really said that such discretion gives unregulated and unbridled power to the State Government which is liable to abuse. We are, therefore, of opinion that in the circumstances of the present legislation it cannot be said that the discretion that has been given to the State Government either by sec. 3 or by sec. 93(2) is liable to abuse, and lead to (discrimination, and is therefore hit by Art. 14 of the Constitution. 9. Lastly it was urged that the Act was passed with the assent of the President, but the Ordinance has been passed by the Raj-pramukh and the assent of the President has not been obtained in its case, and therefore the Ordinance is invalid. We are of opinion that there is no force in this contention either. The Act required the assent of the President, for some of its provisions dealing with the criminal and civil powers of the Panchayat were in conflict with the Civil and Criminal Procedural laws which are mentioned in the concurrent list, and which were already in existence. It was, therefore, necessary in view of those provisions under the Act to obtain the assent of the President. It was, therefore, necessary in view of those provisions under the Act to obtain the assent of the President. There is no point in obtaining the assent of the President to certain sections of the Act. In such cases, what is done is that the assent of the President is obtained to the entire Act. But the provisions which have been amended by the Ordinance have nothing to do with any existing legislation of the Central Legislature covered by the concurrent list. It was, therefore, not necessary to obtain the assent of the President to this modification. 10. We are, therefore, of opinion that the Ordinance cannot be attacked on these grounds. It clearly validates the acts of the Government by new sub-secs. (3) and (4) added to sec. 93 of the Act. 11. In this view of the matter, the application fails and is hereby dismissed.