SHANKARAPPA RAMAPPA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS petition is the result of an extremely unfortunate controversy between Kannad speaking and Marathi speaking members of the Village Panchayat of Sankeshwar which is situated in Hukeri Taluka in the Belgaum District. It appears that the record of this Panchayat used to be; kept in Marathi language. On the 15th May 1954, the Panchayat passed a resolution that the record should be kept in Kannad language. The Panchayat consists of 15 members, 11 of whom are Kannad speaking members and 4 are Marathi speaking members and the Sarpanch also happens to be a Marathi speaking member. On the 24th June 1954, the Collector suspended the execution of this resolution, acting under Section 99 (1) of the Bombay Village Panchayats Act. An appeal was preferred to the Director of Local Authorities and he set aside the order of the Collector on the 15th July 1954, and directed that the resolution passed by the Panchayat should remain effective with the modification that bills and notices issued to members of the public should be in both the languages, Marathi and Kannad. On the 7th August 1954, the Government acting under Section 107 (2) rescinded the order of the Director of Local Authorities and restored the order of the Collector. A show cause notice was issued against the Panchayat on the 22nd April 1955 to show cause why it should not be superseded because it had disobeyed the order passed by the Collector which was confirmed by Government and ultimately the Government on the 8th July 1955 passed a resolution superseding the Panchayat for a period of two years with effect from 15th July 1955. It is this resolution that is being challenged by the petitioners who are the eleven Kannad speaking members of the Panchayat.

(2.) NOW the first ground on which the challenge is made is that the order passed by Government is beyond its competence inasmuch as it supersedes the Panchayat beyond its life-time. The first meeting of this Panchayat was held on the 3rd October 1952 and under Section 11 the term of office of the members is four years. Therefore, the natural life of the Panchayat would come to an end on the 3rd October 1956. The result of the Government's resolution is that the Panchayat continued to be superseded from the 15th July 1955 to the 15th July 1957 which is beyond the 3rd October 1956, and Mr. Jahagirdar's contention is that it is not competent to the Government to supersede a body beyond its natural existence. Now, in order to appreciate this contention, we must look at the language of the section which confers the power upon Government to supersede a Panchayat, viz. Section 102. The first part of the section deals with the conduct of a panchayat which entitles the Government either to dissolve such Panchayat or supersede such Panchayat for the period specified in the order and the consequences of dissolution and supersession are set out in the section. When a Panchayat is dissolved or superseded, all members of the Panchayat shall, from the date specified in the order, vacate their offices as such members, and Sub-section (3) of Section 102 provides that when a Panchayat is dissolved, it shall be reconstituted in the manner provided in the Act. In the case of supersession there is a further consequence and that is that all the powers and duties of the Panchayat shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may, from time to time, appoint in that behalf and all property vested in the Panchayat shall, during the period of supersession, vest in the State Government, and Section 102 (4) (c) provides that on the expiry of the period of supersession, the Panchayat shall be reconstituted in the manner provided in the Act, and the persons vacating office shall be eligible for re-election or re-nomination. Now, it is obvious that supersession is a much more severe penalty to be imposed upon a Panchayat than a dissolution because on dissolution the Panchayat can be reconstituted which means that a fresh election can be held and a new panchayat can come into existence and carry on its work. But in the case of supersession during the period of supersession the powers of the Panchayat are exercised by Government and its property vests in Government and no Panchayat functions during that period. Now, the question is what is the power of Government with regard to supersession? Is the power limited to superseding a Panchayat during its normal life or, as Mr. Desai for the Stale argues, does the power extend to superseding a Panchayat for any length of time as the Government may think proper? Mr. Desai draws attention to the fact that a Panchayat is a body corporate and it has been so made under Section 29 of the Act and it is argued that what is superseded is the body consisting of elected or nominated members of the Panchayat and, there-fore, the supersession may continue beyond the life of the elected and nominated body because the permanent Panchayat which is constituted a corporation continues and the Legislature has conferred upon the Government the power to decide that in the case of a particular village there shall be no elected Panchayat for a particular length of time. In Other words, according to Mr. Desai, on a proper construction of Section 102 power is conferred upon Government in effect to disfranchise the voters of a Village Panchayat for any length of time. Mr. Desai says that in the case of a dissolution a new body is elected immediately, but if Government for any reason thinks that an election should not take place and that there should be no elected Panchayat, then by superseding the Panchayat for a particular length of time it can bring about a situation whereby the village must go without an elected Panchayat and the villagers should be deprived of the right of an elected Panchayat. Now, there are two clear objections in accepting this argument. In the first place, what is superseded under Section 102 is 'such Panchayat' which means the Panchayat which is the offending Panchayat as provided under Section 102 (1) Therefore, the Panchayat which is superseded is the Panchayat consisting of elected and nominated members. If the Government has been given the power to supersede that particular body it is difficult to understand how the supersession can go beyond the life of that body. If that body ceases to exist under the provisions of the Act, the supersession cannot affect that body because that body does not exist. The second objection to the contention put forward by Mr. Desai is that the power which he suggests the Government possesses under Section 102 is an extremely wide power, and unless the Legislature has conferred that power upon Government in the clearest language, we would he extremely loath to come to the conclusion that the Legislature intended Government to disfranchise a village and to allow it to make it possible for a village to go on without a Village Panchayat for any length of time which the Government thinks proper. We can quite understand that under certain circumstances the Legislature may confer such a power upon the executive, but we would require much clearer language than is to ho found in Section 102 to come to the conclusion that in such a case the Legislature has conferred such a power upon the Government. Therefore, in our opinion on the true construction of Section 102 the power of supersession which Government possesses must bet confined to superseding a Village Panchayat for the period of its normal existence as provided in Section 11 of the Act.

(3.) NOW, if that be the correct view of Section 102, what is the consequence? Does the order made by the Government become bad and are the petitioners entitled to succeed? It is clear that the order of supersession would be a valid order until the 3rd October 1956. The order of the Government goes beyond the 3rd October 1956. To that extent it may be bad and unenforceable. But we are concerned with the position today as to whether the petitioners are entitled to say, "quash this order and hold that the supersession by Government of the Panchayat is, not justified in law'. In our opinion, the order is clearly Severable and it is always the duty of the Court to lean in favour of the validity of an order rather than against it and if the court can legitimately uphold the order, it should do so. In our opinion, we find no difficulty in coming to the conclusion that this order is a valid order in so far as it supersedes the Panchayat up to the 3rd October, 1956. If the order purports to supersede it beyond the 3rd October 1956 then it is an invalid order. But as the 3rd October 1956 has not yet been reached, no question arises today of quashing that order. If Government insists upon giving effect to this order after the 3rd of October 1956 then the order can be challenged by any party interested in having this order set aside.