DARSHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioners in the above two writ petitions have challenged the Rajasthan Panchayat Laws (Amendment) Ordinance 1981 (Ordinance No. 10 of 1981) whereby section 7 of the Rajasthan Panchayat Act, 1953 (Act No. 21j of 1955) has been amended by substituting the words "three years" in place of words "five years" in Sub-sec. (1) of Sec. 7. By this amendment the tenure of the Panchayats has been curtailed from five years to three years, in pursuance of this Ordinance the State Government has notified holding of elections of panchayats in Rajasthan. THE holding of election has been challenged on the ground that the Ordinance is not retrospective and the validity of the Ordinance has been challenged on the ground that no circumstances exist, which render it necessary for the Governor to take immediate action. THE issuance of the Ordinance without the existence of such circumstances, which necessitated taking of immediate action, is nothing but colourable exercise of power or the power has been exercised for extraneous reasons and thus, the power conferred on the Governor under Art. 213 of the Constitution, has not been exercised bona fide. It was averred that the Panchayats have had a term of five years since 1969 and the Ordinance has been issued soon after sometime of the prorogation of the House. By and large the panchayats were properly functioning barring the functioning of a few Panchas and Sarpanchas. For the erring panchas and sarpanchas there are provisions in law for initiating necessary action. Thus, firstly no circumstances existed for the exercise of the power under Art. 213 and besides that, there was no urgency to take an immediate action for making an amendment in section 7 of the Rajasthan Panchayat Act for curtailing the normal tenure of the panchayats. THE measure could have been post-poned till the Assembly is summoned. THE last panchayat elections were held in February 1978. Thus, the panchayats have not completed their normal tenure of five years. THE petitioners have prayed for declaration that the Ordinance 10 of 1981 may be declared to be invalid and ultra vires of Art. 213 of the Constitution. In Shanker Singh's writ petition Sec. 3 of Ordinance 10 of 1981, has been sought to be declared ultra vires and in Darshan Singh's writ petition it is further prayed that the non-petitioners may be restrained from holding election of Sarpanch or Panchas of the Gram Panchayat Maur (46-F) till before 5/2/1983.

(2.) A return to the writ petition has been filed by the non-petitioners in Darshansingh's case, in which it is stated that originally the term of panchayats in the Rajasthan Panchayat Act, 1953, was only three years. This was amended in the year 1969 whereby the term was extended to five years. The Amendment Ordinance brings back the original position. It was further stated that by the Rajasthan Panchayat (Extension of Terms) Ordinance, 1981 (Ordinance No. 11 of 1981) the term of panchayats has been extended upto 31/12/1981, or till the day immediately preceding the date of the first meeting of the panchayats as a result of periodical general election, whichever is earlier. The elections of the panchayats in the State of Rajasthan will be held on 10th, 14th and 18th December, 1981, and the election of Gram Panchayat Maur (46 F) will take place on 18th December, 1981. As regards the grounds of attack raised in the writ petition, it was stated that the Ordinance has been rightly issued in exercise of the powers under Art. 213 of the Constitution by the Governor. There was sufficient material on record showing the existence of the circumstances, which rendered it necessary to take immediate action. The Governor was satisfied that the circumstances existed, which render it necessary for him to take immediate action. The Ordinance has been issued in bona fide exercise of the constitutional powers. The powers have been exercised not for any extraneous or mala fide purpose, but have been exercised bona fide after due satisfaction of the existence of the circumstances, which render it necessary for the Governor to take immediate action and the satisfaction of the Governor is not justiciable. As regards the ground that Ordinance 10 of 1981 is not retrospective in operation, the non-petitioners have submitted that by the Rajasthan Panchayat (Amendment) Ordinance, 1981 (Ordinance No. 13 of 1981, S. 7 of the Rajasthan Panchayat Act (21 of 1953) has been amended retrospectively, as it has been provided in sub-clause (2) of clause 1 that the Ordinance No. 1. 3 of 1981 shall be deemed to have come into force with effect from the 15th day of October, 1981 and a new sub-section (4) has been added to S. 7 whereby it is provided that :- " (4) Notwithstanding anything contained in this Act, the term of a Panchayat as constituted under this Act and as existing immediately before the commencement of the Rajasthan Panchayat Laws (Amendment) Ordinance, 1981 (Ordinance No. 10 of 1981) shall be and shall always be deemed to have been three years. " Thus by virtue of the provisions contained in Ordinance No. 13 of 1981, the objection relating to non-retrospectivity of the Ordinance No. 10 of 1981 does not stand.

(3.) IN M/s. S. K. G. Sugar P. Ltd. v. State of Bihar (supra) the validity of the Bihar Ordinance No 3 of 1968 was challenged on the ground that it was beyond the competence of the Governor under Art. 213 of the Constitution because there was no urgency of the promulgation of the Ordinance and the power was exercised mala fide. Sarkaria, J. , speaking for the Constitution Bench, observed that "the Governor's power to promulgate Ordinances under Art. 213 is subject to two conditions, namely : (a) that the house or houses, as the case may be, of the State Legislature must not be in session when the Ordinance is issued; and (b) the Governor must be satisfied as to the existence of circumstances which render it necessary for him to take immediate action. " The dispute was with regard to the existence of condition (b) and in that connection it was observed that - "it is however well settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. It cannot be questioned on ground of error of judgment or otherwise in court. . see State of Punjab v. Sat Pal Dang (1969) 1 SCR 478= (AIR 1969 SC 903 ). "