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2000 DIGILAW 637 (PNJ)

Jagjit Singh v. State of Punjab

2000-06-06

A.S.GARG, HARJIT SINGH BEDI

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JUDGMENT Harjit Singh Bedi, J. - By this petition, a challenge has been made to the constitutionality of sub-clauses (a) and (b) of sub-section (1) of Section 99 of the Punjab Panchayati Raj Act, 1994 inserted by the Punjab Panchayati Raj (Amendment) Act, 2000, with respect to elections to the Panchayat Samitis. 2. As this issue raised is purely legal, the bare facts out of which this matter arises require to be noticed. 3. In order to strengthen the Panchayati Raj Institutions in the States Part IX was inserted in the Constitution of India by the 73rd amendment with effect from June 1, 1993. The State of Punjab thereafter promulgated the Punjab Panchayati Raj Act, 1994 (hereinafter called the Act) in furtherance of its objectives. It provided for a three-tier system at the grass-roots level in the State of Punjab with the Gram Panchayat being constituted for the village level, the Panchayat Samiti at the Block level and the Zila Parishad at the District level. A provision for direct election to these Institutions was also provided for from territorial constituencies to be determined in the manner stipulated under Act. Section 99 of the Act provided that every Panchayat Samiti would consist of 15 to 25 directly elected members from the territorial constituencies in the Panchayat Samiti area and sub-clause (b) of sub-section (1) of Section 99 laid down that representatives of the Sarpanches indirectly elected from amongst themselves and directly elected members of the Panchayat Samiti were to be elected in the ratio of 60 : 40. This sub-clause was deleted by Punjab Act of 15 of 1998 on the ground that it was in direct conflict with the provisions of Article 243(C)(2) of the Constitution of India, which provided that all seats to the Panchayat Samiti were to be filled by direct election. The State of Punjab, however, promulgated the Punjab Panchayati Raj (Amendment) Ordinance, 1999, copy appended as Annexure P-2 on December 31, 1999, in which Clauses (a) and (b) of sub-section (1) of Section 99 were substituted and it was once again provided that members of Panchayat Samities were to be elected from both sources i.e. from amongst the Sarpanches and by direct election with the ratio being fixed at 70 : 30. 4. This Ordinance was replaced by the Punjab Panchayati Raj (Amendment) Act, 2000 (hereinafter called the "Amendment Act"), copy appended as Annexure P-3. 4. This Ordinance was replaced by the Punjab Panchayati Raj (Amendment) Act, 2000 (hereinafter called the "Amendment Act"), copy appended as Annexure P-3. Sub-clauses (a) and (b) of Section 99(1) introduced by the amendment have been challenged by the petitioners on the plea that its provisions were violative of the mandate of Article 243(c)(2) of the Constitution of India, which visualised that all seats in a Panchayat, which would include a Panchayat Samiti, were to be filled by persons chosen by direct election though sub- Article (3) thereof did provide for the election of a small number of members by direct election. It has been pleaded in the writ petition that by reducing the ratio of the directly elected members to 30 while retaining 70 for the representatives of the Sarpanches indirectly elected, the provisions of Article 243(C) had been circumvented and as this was a colourable exercise of power, the aforesaid provisions were liable to be struck down on that basis. 5. On notice of motion, a reply has been filed by the respondents in which it has been pointed out that it had been found by the State Government that on account of an irrational distribution of seats introduced by the Amendment of 1998, the link between the higher and lower levels of Panchayati Raj Institutions had been blocked and it had accordingly been decided to restore the institutional linkage between these sister institutions by filling in 70% of the seats from amongst elected Sarpanches and 30% by direct election. 6. Mr. Harbhagwan Singh, the learned Senior Counsel appearing for the petitioners, has raised only two arguments in the course of the hearing. He has firstly urged that the very terminology of Article 243(C)(2) required that all elections were to be direct with a small exception laid down in Sub- Article (3) thereof but by the changes made by the Amendment Act, the effect of this provision had been totally nullified and the ratio of 70 : 30 fixed, had by implication, obliterated the provisions of Article 243(C)(2). 7. Mr. A.G. Masih, the learned State Counsel, has however, pointed out that Article 243(C) itself (in Sub-Article (3)) visualised indirect election from amongst the chairpersons of the Panchayats, and as such the Amendment Act amply stood the test of constitutionality. 8. We have considered the arguments raised by the learned counsel for the parties. 9. 7. Mr. A.G. Masih, the learned State Counsel, has however, pointed out that Article 243(C) itself (in Sub-Article (3)) visualised indirect election from amongst the chairpersons of the Panchayats, and as such the Amendment Act amply stood the test of constitutionality. 8. We have considered the arguments raised by the learned counsel for the parties. 9. The report of the Joint Committee on the Constitution (Seventy Second Amendment) Bill, 1992, had noted that the issues relating to direct or indirect elections in the Panchayati Raj Institutions was of vital importance as directly elected members had an inherent strength of having been elected by the people and indirect elections had often led to manipulative practices. The Committee had accordingly recommended that in order to strengthen democracy, all seats in the Panchayats at all levels should be filled by direct election with a proviso that it may be left to the Legislature of the State to make a provision relating to the representations of Chairpersons of Panchayats in the Panchayats at the next higher level, i.e. Chairperson of the Panchayats at village level may be represented at the intermediate level and the Chairperson of the Panchayats at the intermediate level may be represented at the District level. This recommendation of the Committee was accepted and Article 243(C) was promulgated in furtherance of the objects laid down in the said Article. In Section 99 of the Act it was provided that representatives of the Panchayat Samiti would be elected from amongst the Sarpanches of the Gram Panchayat in the Panchayat Samiti area and also directly in the ratio of 60 : 40. This provision was, as already mentioned above, omitted by the Punjab Act 15 of 1998 and the reasons for doing so were given as : "Statement of Objects and Reasons The Punjab Panchayati Raj Act, 1994, presently provides for 40% of the Samiti members to be elected directly while the remaining 60% are indirectly chosen from amongst Sarpanches in the samiti area. Article 243(2) of the Constitution enjoins that all seats in Panchayats shall be filled by persons chosen by direct election from territorial constituencies. Although the State Legislature may under Article 243(3) provide for indirect representation, it is evident that the spirit of the Constitution requires that members of the Panchayat Samiti should, by and large, be directly elected. Article 243(2) of the Constitution enjoins that all seats in Panchayats shall be filled by persons chosen by direct election from territorial constituencies. Although the State Legislature may under Article 243(3) provide for indirect representation, it is evident that the spirit of the Constitution requires that members of the Panchayat Samiti should, by and large, be directly elected. Accordingly the Act is proposed to be amended to provide for direct election for members of the Panchayat Samitis." 10. By the impugned notification the omitted provisions have been reintroduced with even greater emphasis on indirect election as the ratio of the representatives of the Sarpanches and of directly elected members has now been fixed at 70 : 30. 11. As would be evident the fate of the matter would hinge on the interpretation of Article 243(C) read with Section 99 of the Act. These provisions are reproduced below : 243(C) : 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 number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area. (3) The legislature of a State may, by law, provide for the representation :- "(a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayat at the district level; (b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;" Section 99 before amendment of 1998 Composition of Panchayat Samitis. - (1) Every Panchayat Samiti shall consist of : (a) six to ten directly members from territorial constituencies in the Panchayat Samiti area as may be determined under Section 100 of the Act and notified by the State Government so far as practicable, having regard to the uniformity of population of each constituency; (b) representative of the Sarpanches directly elected by them from amongst the Sarpanches of the Gram Panchayats in the Panchayat Samiti area : Provided that ratio of the representatives of the Sarpanches and that of the directly elected members shall be sixty : forty; (c) Members of the Legislative Assembly of the State of Punjab major portion of whose constituency falls in the Panchayat Samiti area; (d) Members of the legislative Council of the State of Punjab, if any, who are registered as electors within the Panchayat Samiti area; 2) The members of the Panchayat Samiti whether or not chosen by direct election from territorial constituencies in the Panchayat Samiti shall have the right to vote in the meetings of the Panchayat Samiti. Section 99 after the Amendment Act In the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as the principal Act), in Section 99, in sub-section (i), for clause (a), the following clauses shall be substituted, namely :- (a) Three to five directly elected members from territorial constituencies in the Panchayat Samiti area as may be determined under Section 100 of this Act and notified by the State Government so far as practicable, having regard to uniformity of population of each constituency; (b) representatives of the Sarpanches of the Gram Panchayats in the Panchayat Samiti area elected by them from amongst themselves : Provided that the ratio of the representatives of the Sarpanches and that of the directly elected members shall be seventy : thirty." A bare look at the terminology of Article 243(C)(2) would reveal that a mandate has been laid that all the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies carved out in the manner laid down in the said provision as also in the relevant provisions of the Act. The learned State counsel has, however, laid emphasis on Sub-Article (3) of Article 243(C) of the Constitution, which provides that the Chairpersons of the lower Panchayati Raj Institutions may also be represented to the higher levels by election held amongst themselves, to the said bodies. 12. We are of the opinion that the ratio of indirectly vis-a-vis directly elected ones fixed by the Amendment Act has in fact nullified the Constitutional mandate given in Article 243(C)(2) of the Constitution and a mandatory provision has been set at naught by a directory and enabling provision. This could never have been the intention of Parliament when it gave a limited authority to the State Legislature under Section 243(C)(3). We are supported in our opinion by the report of the Joint Committee which suggested the incorporation of Part IX in the Constitution, as also by the objects and reasons given in promulgating Act 15 of 1998, by which Section 99 of the Act was amended to provide for only direct election to the Panchayat Samitis. It is significant that this amendment was made by the same legislature which has made the present change as well. At that time, it had been found that the ratio of 40% of the Samiti members to be directly elected and the remaining 60% by indirect elections from the representatives of the Sarpanches was contrary to the Constitutional mandate of Article 243(C) of the Constitution and it had been noticed that although the State Legislature was authorised [under Article 243(C)(3)] to provide for indirect representation yet the spirit of Constitution required that members of the Panchayat Samitis should be directly elected. We find absolutely no reasons whatsoever as to why the State Legislature has taken a volte-face and returned to a situation where only 30% members are to be elected directly and 70% through indirect election. 13. Mr. Harbhagwan Singhs reliance, therefore, on Dwarka Dass Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd. and others, AIR 1954 Supreme Court 119, appears to be of some merit. In this case, an Ordinance was issued for taking over of the management of the Sholapur Spinning and Weaving Company Ltd. The ordinance was challenged on the ground that its provisions had in fact enabled the Central Government to take over the management of the mill to the total exclusion of the share-holders. In this case, an Ordinance was issued for taking over of the management of the Sholapur Spinning and Weaving Company Ltd. The ordinance was challenged on the ground that its provisions had in fact enabled the Central Government to take over the management of the mill to the total exclusion of the share-holders. It was accordingly contended that the said Ordinance was bad in law. The Honble Supreme Court observed that in order to decide as to whether a particular legislation was unconstitutional, it was open to the Court to look behind the names, forms and appearances to discover the true character and nature of the legislation and that the substance of the legislation was to be examined in determining the real intent behind the legislation. Mr. Harbhagwan Singh appears to be on firm ground when he urges that the real intent behind the impugned legislation was to do away with the Constitutional provisions given in Article 243(C)(2) of the Constitution, which provided that all elections to the Panchayat Samitis were to be held directly, by taking recourse to Article 243(C)(3) by limiting the indirectly elected members vis-a-vis to directly (elected) ones to a ratio of 70 : 30. 14. Reliance has also been placed by Mr. Harbhagwan Singh on P. Vajravelu Mudaliar v. The Special Deputy Collector for Land Acquisition, West Madras and another, AIR 1965 Supreme Court 1017. In this case, the State Government of Madras had made an amendment in the Land Acquisition Act providing for the payment of compensation on account of acquisition of property, which was wholly illusory. The Honble Supreme Court observed that such a provision would amount to a fraud on the powers conferred on the legislature to legislate and as the compensation to be awarded was to be fixed on fair principles and not arbitrarily, the amendment was contrary to the provisions of Article 31(2) of the Constitution. It was also observed that if the Legislature transgressed its legislative powers in a covert or indirect manner and adopted a device to outstep the limits of its power, interference by the Court is called for. We are of the opinion that it is open to us to look under the facade and to examine the true intent of the amendment. We are of the opinion that it is open to us to look under the facade and to examine the true intent of the amendment. We are in agreement with the argument of the learned counsel, that Article 243(C)(2) has made a provision for direct election of all members with such exceptions as given in Article 243(C)(3). We find that this enabling and directory provision cannot be allowed to obliterate the mandate of Article 243(C)(2). We are, therefore, of the opinion that Clauses (a) and (b) of Section 99(1) as introduced by the Amendment Act are unconstitutional being opposed to the express provisions of Article 243(C)(2). They are accordingly struck down. There will be no order as to costs. Order accordingly.