GORELAL Vs. STATE OF M P

JUDGEMENT

(1.) Through this petition under Article 226 of the Constitution of India, the petitioner questions the vires of S.30(1)(e) of the Madhya Pradesh Panchayat Act, 1981 (Act No.35 of 1981). This provision is as follows

(2.) As a step towards implementation of the directive principle contained in Article 40 of the Constitution of India that the States shall take steps to organise village Panchaynts and endow them with such power and authority as may be necessary to enable them to function as units of self government, the State of Madhya Pradesh first enacted the Madhya Pradesh Panchayats Act, 1962. This Act was subsequently replaced by the Madhya Pradesh Panchayat Repeal Ordinance, 1981 (No.6 of 1981) and the Madhya Pradesh Panchayat (Amendment) Ordinance, 1981 (No.8 of 1981) which have since been repealed by the Madhya Pradesh Panchayat Act, 1981 (hereinafter referred to as the Act) which received the assent of the Governor on 6th October, 1981 and was published in Madhya Pradesh Rajpatra on 7th October, 1981. The repealed Panchayats Act, 1962 provided for establishment of Gram Sabhas, Gram Panchayats and Janpad Panchayats. This three tier system of Panchayat Raj is maintained under the 1981 Act also Sec. 3 whereof provides that for the purpose of the Act, there shall be established a Gram Panchayat for a village or group of villagers; a Janpada Panchayat for a block; and a Zilla Panchayat for a district. According to S.4(I) of the Act, a Gram Panchayat for a village or group of villages is established by the order of the State Government or of any officer authorised by the State Government in this behalf specifying the name of the Gram Panchayat by which it shall be known, its headquarters, the limits of the area within its jurisdiction and population of the Gram Panchayat area. Such Gram Panchayats shall be a body corporate by the name specified therefor in the order or notification under Sec. 4, and shall have power to acquire, hold or transfer property, movable or immovable, to enter into contracts and to do all other things necessary for the purpose of the Act. Chapter-III of the Act contains various provisions for constitution of the Panchayats. For constitution of a Gram Panchayat, it contemplates preparation of a voters list. A person shall be disqualified for registration in the list of voters of a Gram Panchayat area, if he falls in any of the categories specified in clauses (a), (b), (c) or (d) of sub-section (1) of S.9, which are as follows

(3.) Article 13(2) of the Constitution of India prohibits the State to make any law which takes away or abridges the rights conferred by Part III of the Constitution and provides that any law made in contravention, shall be void. Article 254(1) confers jurisdiction on the Legislature of a State to make laws for the whole or any part of the State. The words "subject to the provisions of this Constitution" with which Art. 245(1) opens indicate that the object of Art.245(1) is not to exempt either the Parliament or the State Legislature from any of the limitations which are imposed by other provisions of the Constitution upon legislative power. The powers of the Union and the State Legislature are thus limited by the fundamental rights guaranteed by Part III of the Constitution. This will be so even where the legislation is undertaken in pursuance of the directive principle. See State of Bombay v. United Motors, 1953 SCR 1069. The Court attaches great weight to the legislative judgment and may start with assumption that the Legislature is the best Judge of what is good for its community by whose suffrage it comes into existence. Our Constitution, however, confers on Courts express power of judicial review. Article 13 assigns the Court the role of a sentinel on the 'qui vive'. The Courts are, therefore, always alive to and cannot desert their duty to determine finally the constitutionality of a stature. See Kochunni v. State of Madras, AIR 1959 SC 725. In determining such constitutionality of a provision alleged to be violative of a fundamental right, the Court must weigh the substance, the real effect and impact thereof on the fundamental right, and would not allow a Legislature to bypass a constitutional prohibition by employing indirect methods. Right to be elected to an office created/ established under some statute is not a fundamental right of a citizen. It is not a common law right either. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, it was emphasised that outside the statute, there is no right to elect, no right to be elected and no right to dispute an election. They are statutory creations and are, therefore, subject to statutory limitation. See also Umesh Pandey v. State of M. P. (M. P. No.1184 of 1989 (J), decided on 30-6-89 (reported in 1989 Jab LJ 550). The Legislature is well empowered to prescribe eligibility qualifications for being so elected. Authority in favour of Legislature must also be conceded to impose restrictions and provide dis-qualifications in that behalf. All the same, such restrictions cannot be permitted to be no unreasonable as to result in depriving a citizen, otherwise eligible, of such right created by a statute. The restrictions coming in form of disqualifications must be reasonable. Such restrictions being limitations in the enjoyment of a right should not be arbitrary or of an excessive nature and must bear a reasonable relation to the object which the legislature seeks to achieve. In order to know if a given restriction is reasonable or otherwise, one must look to the nature of right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time. See Laxmi v. State of U. P., AIR 1981 SC 873 and Trivedi v. State of Gujarat, AIR 1986 SC 1323. In judging such reasonableness, it is not only permissible but also necessary for the Court to look into all contemporaneous legislation passed as a part of a single scheme. The scope of inquiry of reasonableness of classification on the ground of Art.14 is not the same as under Art.19, although in certain fields, the requirements of the two Articles may converge. This view finds support from the decision of the Supreme Court in Deena v. Union of India, AIR 1983 SC 1155, paras 15 and 16. It is settled proposition of law that the determination by the Legislature of what constitute a reasonable restriction is not final or conclusive. It is subject to the supervision of the Court. Bhagwati, J. (as he then was), in Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, after referring to certain passage from "The Rule of Law and the Welfare State" by Herry Jones, observed that "It is indeed unthinkable that in a democracy governed by the rule of law, the executive Government or any of the officers should possess arbitrary power over the interest of its individuals". The learned Judge further said that every action of the executive must be informed with reason and should be free from arbitrariness and referring to the decisions of the Supreme Court in E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; and Maneka Gandhi v. Union of India, AIR 1978 SC 597, lucidly analysing the principles contained in Art.14, made the following observations :