ZINABHAI RANCHHODJI DARJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition raises an interesting but difficult question of construction of certain provisions of the Gujarat Panchayats Act 1961 (hereinafter referred to as the Panchayats Act). It is an extraordinary and unique piece of legislation framed without much scientific accuracy of language and many of its provisions are so unhappily worded that it is difficult to penetrate their confusion and obscurity. This is not the first time that we are called upon to face the complexities of this legislation and with our growing acquaintance with its provisions we must confess to a feeling of reluctant respect which one feels for an old tough sparring partner whom one has never been able to knock out. The question that arises for consideration before us turns primarily on the true interpretation of sec. 310A sub-sec. (10) of the Panchayats Act but in order to arrive at its proper determination it is necessary to state briefly a few relevant facts giving rise to the petition.

(2.) When the elections to the Vyara Taluka Panchayat took place in 1958 the petitioner who is a resident of Vyara was elected as a member and at the first meeting of the Vyara Taluka Panchayat he was elected as its President. On his election as President of the Vyara Taluka Panchayat he became ex-officio member of the Surat District Panchayat by virtue of sec.15(1)(A)(i) of the Panchayats Act. He was then elected as President of the Surat District Panchayat. The consequence of his election as President of the Surat District Panchayat was that under sec. 15(3) of the Panchayats Act he ceased to hold his office of President of the Vyara Taluka Panchayat but continued to be an ex-officio member of the Surat District Panchayat. The Surat District consists of several talukas of which one is Chorashi Taluka and for the Chorashi Taluka there was the Chorashi Taluka Panchayat constituted under the provisions of the Panchayats Act. The area over which the Surat District Panchayat and subject to the authority of the Surat District Panchayat the Chorashi Taluka Panchayat had authority included two local areas known as Render and Adajan. Render was a Nagar and Adajan was a Gram. There was a Nagar Panchayat for Render and a Gram Panchayat for Adajan. Both these local areas of Rander and Adajan were by a notification dated 16th January 1970 issued by the State Government under sec. 3sub sec(3) of Bombay provincial Municipal corporation act 1949 (hereafter referred to as the Corporations Act) included in the limits of the Surat Municipal Corporation and consequent upon such inclusion a notification dated 21st January 1970 was issued by the Development Commissioner as delegate of the State Government under sec. 9 sub-sec. (2) of the Panchayats Act declaring that the local area of Rander shall cease to be a Nagar and the local area of Adajan shall cease to be a Gram from 1st February 1970. The result was that the local areas of Rander and Adajan were excluded from the limits of the jurisdiction of the Chorashi Taluka Panchayat and the Surat District Panchayat. Now from amongst co-opted members of the Chorashi Taluka Panchayat there were two who were residents of Adajan. One was Marghabhai Zinabhai Rathod who was co-opted as a representative of the Scheduled Castes and the other was Laxmiben Patel who was co-opted as lady member interested in the welfare activities pertaining to women and children. There was also one lady member in the Surat District Panchayat named Sumanben who was elected to one of the two seats reserved for women and who was registered as a voter in Rander. The question was whether these persons could continue to remain members of the respective Panchayats when Rander and Adajan were no longer within the limits of those Panchayats. The District Development Officer by his letter dated 21st March 1970 invited the attention of the Development Commissioner to these facts and sought his opinion in the matter. This was followed by a letter dated 29th April 1970 addressed by the petitioner as President of the Surat District Panchayat to the Development Commissioner where the petitioner once again requested the Development Commissioner to examine the question by taking opinion of legal experts. The Development Commissioner as it appears from the affidavit filed by him in reply to the petition on 23rd January 1971 carefully examined the question and came to the conclusion on 12th May 1970 that it was necessary to dissolve and reconstitute the Chorashi Taluka panchayat and the necessary to dissolve and reconstitute the Chorashi Taluka Panchayat and the Surat District Panchayat in accordance with the provisions of sec. 310A of the Panchayats Act. But since the question involved interpretation of legal provisions he made a reference seeking legal advice from the State Government on 13th May 1970 The State Government by a Communication dated 12th October 1970 intimated to the Development Commissioner that the legal position was that the Chorashi Taluka Panchayat and the Surat District Panchayat would have to be dissolved and reconstituted under sec. 310A of the Panchayat Act. On his view being thus confirmed by the legal advice received from the State Government the Development Commissioner addressed a letter dated 10 October 1970 to the District Development Officer requesting him to forward his proposals in regard to the reconstitution of the Chorashi Taluka Panchayat and the Surat District Panchayat. It appears that the District Development Officer in his turn invited proposals in regard to reconstitution of the Chorashi Taluka Panchayat from its President but no proposals were received from him. So far as the proposed reconstitution of the Surat District Panchayat was concerned the question was discussed at a meeting of the Executive Committee of the Surat District Panchayat held on 22nd December 1970 and pursuant to the decision taken at this meeting a letter dated 24th December 1970 was addressed by the District Development Officer to the Development Commissioner forwarding a list showing the names of co-opted members of the Chorashi Taluka Panchayat and elected members of the Surat District Panchayat as also proposals for appointment of members in place of those vacating their posts as members. The Development Commissioner thereafter in exercise of the powers conferred on the State Government under sec. 310A of the Panchayats Act and delegated to him by virtue of a notification dated 13th June 1963 as amended by a subsequent notification dated 5th May 1964 passed an order dated 8th January 1971 dissolving the Chorashi Taluka Panchayat and the Surat District Panchayat with effect from 11th January 1971 and directing that with effect from the said date the members of the dissolved Panchayats shall vacate their offices and the Chorashi Taluka Panchayat and the Surat District Panchayat shall be reconstituted with members specified in Clause 3 of the Order read with Schedules I and II. Now the petitioner having ceased to hold his office as President of the Vyara Taluka Panchayat on his election as President of the Surat District Panchayat was not the President of the Vyara Taluka Panchayat at the date of the dissolution and reconstitution of the Surat District Panchayat and could not therefore be an ex-officio member of the reconstituted Surat District Panchayat in accordance with sec. 310A sub-sec. (2)(b). He was also not an elected member of the Surat District Panchayat and the Development Commissioner did not therefore appoint him in lieu of elected members under sec. 310A sub-sec. (2)(b). The result was that the petitioner ceased to be a member of the Surat District Panchayat as reconstituted and with the cessation of his membership his President ship also came to an end. The petitioner therefore filed the present petition challenging the validity of the order of dissolution and reconstitution made by the Development Commissioner.

(3.) There were two grounds on which the validity of the impugned order made by the Development Commissioner was challenged on behalf of the petitioner and broadly stated they were : (A) The Development Commissioner as delegate of the State Government had no power to dissolve the Chorashi Taluka Panchayat and the Surat District Panchayat under sec. 310A sub-sec. (1) of the Panchayats Act by reason of the excepting provision contained in sub-sec. (10) of sec. 310A and the impugned order was therefore null and void as being without authority; (B) The impugned order was made by the Development Commissioner mala fide with the object of throwing out the petitioner from his position as President of the Surat District Panchayat since he disagreed on principle with some of the persons in authority and power in the State Government and there being differences of opinion he resigned from the ruling Congress Party in the State. We shall examine these two grounds in the order in which we have set them out above.