MD BAHAR ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this batch of Writ Petitions under Article 226 of the Constitution of India, the question which arises for determination is, as to whether the Gaon Panchayats and Anchalik Panchayats which were constituted in the year 1992, are entitled to continue beyond the period of five years from the date of their first meeting until new Gaon Panchayats and Anchalik Panchayats are elected and hold their first meeting or were liable to be dissolved by the State Government soon after the expiry of the period of five years from the date of their first meeting in the year, 1992.

(2.) The facts briefly are that the elections to Gaon Panchayats and Anchalik Panchayats were held in the year 1992 under the Assam Panchayati Raj Act, 1986 (for short the "1986 Act"). Thereafter, the Gaon Panchayats had their first meetings on 14.3.92 and the Anchalik Panchayats had their first meeting on 25.5.92. By Constitution (Seventy-Third Amendment) Act, 1992 various provisions relating to Panchayats were introduced in the Constitution in Articles 243 to 243 O in Part DC which was titled as "The Panchayats". Article 243 N in particular provided for continuance of the law relating to Panchayats in force in any State for a period of one year until amended or repealed by the competent Legislature or until expiration of one year from the commencement of the said Constitution amendment. Thereafter, the Legislative Assembly of State of Assam enacted the Assam Panchayat Act, 1994 (for short the "1994 Act") with a view to make the law of the State relating to Panchayats consistent with the aforesaid provisions in Part-IX of the Constitution. Article 243 E in Part IX of the Constitution provides for the term of office of the Panchayats as five years from the date of their first meeting. Since five years from the date of the first meeting of the Gaon Panchayats were to expire on 14.3.97 and five years from the date of first meeting of the Anchalik Panchayats would expire on 2S.5.97, the petitioners apprehended that the State Government would dissolve the Gaon Panchayats and Anchalik Panchayats and will constitute ad hoc bodies to function in their places until the elections are held to the Gaon Panchayats and Anchalik Panchayats and the elected Gaon Panchayats and Anchalik Panchayats have their first meeting.

(3.) Mr. A.K. Phukan, learned counsel for the petitioners in CRNos. 916/97, 1066/97 and 1067/97, referred to paragraph 11 of the writ petition in CRNo. 916/97 in which it has been averred that the Anchalik Panchayats and Gaon Panchayats as of right should remain in office until the date appointed for the first meeting of the newly elected Panchayats and such rights cannot be abridged by any action of the State Government. He also brought to my notice the reply to the said averments in paragraph 11 of the writ petition contained in paragraph 14 of the affidavit-in-opposition filed by the respondents to the effect that Gaon Panchayats and Anchalik Panchayats are entitled to remain in office as provided under the Constitution, the 1986 Act and the 1994 Act and submitted that the State Government has not acceded to the contention of the writ petitioners that they are entitled to continue in office until elections are held and the newly elected Gaon Panchayats and Anchalik Panchayats held their first meeting. Mr. Phukan submitted that the apprehension of the petitioners, therefore, cannot be said to be totally unfounded and it is for this reason that the petitioners have approached this Hon'ble Court for a direction on the respondents not to take any action for removing the Gaon Panchayats and Anchalik Panchayats from their office until the appointed date of the first meeting of the newly elected Gaon Panchayats and Anchalik Panchayats. Mr. Phukan further submitted that so far as the petitioners Anchalik Panchayats and the Gaon Panchayats under its jurisdiction are concerned, they have all been constituted under the 1986 Act and, therefore, their term of office would be determined as per the provisions of 1986 Act. He pointed out that while under Section 10(3) of the 1986 Act, the term of the office of the Gaon Panchayats has been indicated to be five years from the date of first meetings of the Gaon Panchayats. It has been clearly provided in the proviso to sub-section (3) of Section 10 of the 1986 Act that such term of office shall be held to include any period which may elapse between the expiration of the said period and the date of the first meeting of the Gaon Panchayats newly constituted at which a quorum shall be present. Mr. Phukan submitted that similar provisions have been made in Section 115 of the 1986 Act with regard to Anchalik Panchayats and while it has been stated in sub-section (1) of Section 15 of the 1986 Act that term of office of Anchalik Panchayats shall be 5 years from the date of first meeting of the Anchalik Panchayats, the first proviso to sub-section (1) of Section 15 makes it clear that such term shall be held to include any period which may elapse between the expiration of the said period and the date of the first meeting of the Anchalik Panchayats newly constituted. Mr. A.K. Phukan then relied on the provisions of Article 243E introduced by the Constitution (Seventy-Third Amendment) Act, 1992 and in particular the proviso thereof which indicates that all Panchayats existing immediately before the commencement of the said amendment shall continue till the expiration of its duration unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of the State. He pointed out that similar provisions have been made in Section 130 of the 1994 Act to the effect that all the Panchayats existing immediately before the commencement of the Act, shall continue till the expiration of their duration as under the 1986 Act unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of the State. According to Mr. Phukan, since no resolution has been passed by the Legislative Assembly of the State of Assam dissolving all the existing Panchayats, including the petitioners. Anchalik Panchayats, and Gaon Panchayats Hinder its jurisdiction, are entitled to continue for their full duration which would mean nod only the five years period as stated in sub-section (3) of Section 10 and sub-section (1) of Section 15 of the 1986 Act but the further period until the first meeting of the newly elected Gaon Panchayats and the Anchalik Panchayats is held as clearly stipulated in the proviso to sub-section(3) of Section 10 and in the first proviso to sub-section (1) of Section 15 of the 1986 Act. Mr. A.K. Phukan further submitted that in Article 243 E, clause (1) a provision has been made that every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and "DO longer". But the said provision contained in clause (1) of Article 243E has to be read alongwith clause (3) of the said Article which clearly states that an election to constitute a Panchayat shall be completed before the expiry of its duration specified in clause (1). He therefore submitted that the provisions of clause (1) of Article 243E of the Constitution cannot be invoked for the purpose of dissolving a duly elected Panchayat after expiry of five years term unless before the expiry of the said period of five years, elections are held to the Panchayats. Mr. A.K. Phukan submitted that the intention of the Legislature would be clear from the fact that in the Constitution Amendment Bill and, in particular, the draft clause (1) of Article 243 I, it was provided that the expiration of the said period of five years shall operate as a dissolution of the Local Authority. But when the Constitution amendment was finally made, the provision at its draft stage that the expiry of period of five years shall operate as dissolution of Local Authorities was dropped by the Legislature. Mr. Phukan also relied on the statement of Objects and Reasons appended to the bill in support of his submission that the provisions in Part IX of the Constitution have been introduced by the Constitution (Seventy-Third Amendment) Act, 1992 with a view to prevent supersession of Local Authorities such as Panchayat Raj Institutions and Urban Local Bodies. He argued that if the State Government is allowed to dissolve the existing Panchayats which were duly elected in the year 1992, they will be allowed to continue the mischief which is sought to be prevented by the provisions contained in Part IX of the Constitution. He further contended that automatic dissolution has not been contemplated either under the 1986 Act or under the 1994 Act and in the circumstances, the Government cannot automatically dissolve the Panchayats on the expiry of five years from the date of their first meeting and not allow them to carry on the duties assigned to them By the said Acts until they are replaced by the new Panchayats elected in accordance with the 1994 Act. He cited the judgment of this Court in the case of Manik Sarkar -Vs- State of Assam and others, (1994) 2 GLR 431, in which similar provisions relating to Municipalities incorporated in Part IX-A of the Constitution by the Constitution (Seventy-Fourth Amendment) Act, 1990 were interpreted and it was held that the State Government had no power to appoint a group of persons as Ad hoc body to function till the elections are held in the Municipality. He stated that the said decision in the case of Manik Sarkar -Vs- State of Assam and Others (supra) rendered by the Single Judge in the context of Part IX A introduced in the Constitution will apply equally to the scheme relating to Panchayats as contained in Part IX of the Constitution.