{"id":57056,"date":"1995-03-24T00:00:00","date_gmt":"1995-03-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-etc-vs-pradhan-sangh-kshettra-samiti-on-24-march-1995"},"modified":"2016-03-28T06:40:51","modified_gmt":"2016-03-28T01:10:51","slug":"state-of-u-p-ors-etc-vs-pradhan-sangh-kshettra-samiti-on-24-march-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-etc-vs-pradhan-sangh-kshettra-samiti-on-24-march-1995","title":{"rendered":"State Of U.P. & Ors.Etc vs Pradhan Sangh Kshettra Samiti & … on 24 March, 1995"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P. & Ors.Etc vs Pradhan Sangh Kshettra Samiti & … on 24 March, 1995<\/div>\n
Equivalent citations: 1995 AIR 1512, \t\t 1995 SCC Supl. (2) 305<\/div>\n
Author: P Sawant<\/div>\n
Bench: Sawant, P.B.<\/div>\n
           PETITIONER:\nSTATE OF U.P. & ORS.ETC.\n\n\tVs.\n\nRESPONDENT:\nPRADHAN SANGH KSHETTRA SAMITI & ORS. ETC.\n\nDATE OF JUDGMENT24\/03\/1995\n\nBENCH:\nSAWANT, P.B.\nBENCH:\nSAWANT, P.B.\nAGRAWAL, S.C. (J)\n\nCITATION:\n 1995 AIR 1512\t\t  1995 SCC  Supl.  (2) 305\n JT 1995 (3)   252\t  1995 SCALE  (2)453\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
SAWANT, J.:\n<\/p>\n
1.   Special leave granted.\n<\/p>\n
2.The Constitution [Seventy-Third Amendment] Act, 1992\tcame
\ninto force on 24th April, 1993 to give effect to one of\t the
\nDirective  Principles of the State Policy, viz., Article  40
\nof  the\t Constitution of India which directs  the  State  to
\norganise village panchayats as units of self-government.\n<\/p>\n
3.   On\t coming\t into  force  of  the  said   Constitutional
\nAmendment, the States were
\n257<\/span>
\nrequired  by  the Centre to take steps to  organise  village
\npanchayats  on\tthe  lines  o the  provisions  of  the\tsaid
\nConstitutional\tAmendment  by  making law  or  amending\t the
\nexisting law suitably.\tThe Uttar Pradesh State\t Legislature
\namended its Panchayat Raj Act, 1947 [hereinafter referred to
\nas the ‘Act’] by enacting the U.P. Panchayat Raj [Amendment]
\nAct, 1994 which came into force on 22nd April, 1994.  As per
\nthe  provisions of the Act, several Government\tinstructions
\nand notifications were issued and rules were framed  between
\n22nd  April, 1994 and 31st August, 1994 with a view to\thold
\nelections to the panchayats.  In particular the\t declaration
\nof  the\t gram  panchayat areas under Section  11-F  and\t the
\nestablishment  of the gram sabhas under Section 3 were\tmade
\nbetween\t 2nd  and 5th August, 1994.  The term  of  the\tgram
\npanchayats constituted under the unamended provisions of the
\nAct  was  to  expire  on 23rd  April,  1993.   The  Governor
\nextended  their\t term  till  23rd April\t 1995  or  till\t new
\npanchayats  were  constituted, whichever was  earlier.\t The
\nelections  to the new panchayats were then notified on\t31st
\nAugust,\t 1994.\t In  pursuance\tof  this  notification\t the
\nelection process was to commence on 29th September, 1994.\n<\/p>\n
4.The\trespondents  approached\t the  High  Court  by\twrit
\npetitions  between  1st\t and 9th September,  1994  making  a
\ngrievance that the Government orders were being violated  in
\nthe  process  of  re-organisation and  delimitation  of\t the
\nconstituencies.\t  A few of the\trespondent-writ\t petitioners
\nalso challenged the said Constitutional Amendment as well as
\nthe  vires  of\tthe  Act.  The\tHigh  Court  heard  all\t the
\npetitions  together.   The State Government,  by  filing  an
\naffidavit as well as through publications in the press\tfrom
\n9th September to 19th September, 1994, offered a fresh time-
\nschedule of the elections and also to remove the  grievances
\nafter  considering the representations.\t On 24th  September,
\n1994, the State Government cancelled the notification  dated
\n31st August, 1994.  On 26th September, 1994, the High  Court
\nreserved  its judgment.\t In the meantime,  under  compulsion
\nand pressure from the Centre including a threat to stop\t the
\nrelease\t of  funds  unless  the\t process  of  election\t was
\ncompleted  by 31st December, 1994, conveyed in the  Centre’s
\ncommunication\tdated\t12th  November,\t 1994,\t the   State
\nGovernment  renotified\tthe  dates  of\telections  on\t26th
\nNovember, 1994 in pursuance whereof the process of  election
\nwas to commence on 3rd December, 1994.\n<\/p>\n
5.   The  High Court by its impugned judgment  delivered  on
\n2nd  December, 1994 has held, among other things,  that\t the
\ndefinitions  of\t ‘village’ under Section 2  [t],  of  ‘Grain
\nSabha’\tunder  Section 2 [g] and of ‘Panchayat\tArea’  under
\nSection 2 [11] read with Section 11-F of the Act were  ultra
\nvires the respective definitions given in Articles 243\t[g],
\n243  [b],  and\t243  [e] read  with  Article  243-C  of\t the
\nConstitution.  The High Court has further held: [i] that the
\nvillage has to be a habitat according to the anthropological
\nconcept,  [ii]\tthat  the village for the  purposes  of\t the
\nPanchayat  can\tbe  specified only in  accordance  with\t the
\nwishes of the inhabitants of the village as conveyed to\t the
\nGovernor who is obliged to notify it without involvement  of
\nthe  State  Government, [iii] that the Governor has  to\t act
\nindependently  of  the\tState Government in  the  matter  of
\nspecification of the “village” and [iv] further the  village
\nwill  have  to\tbe  fixed  according  to  the\taspirations,
\nchauvinism and the wishes of the villagers.  As regards the
\n258<\/span>
\nGrain Sabha, the Court has held that although the definition
\nof Gram Sabha refers to a body of persons registered in\t the
\nelectoral  rolls,  the\treference  to  “establishment  under
\nSection\t  3”  and  the\tprovision  for\t establishment\t and
\nnotification of Gram Sabha in Section 3, are ultra vires the
\nConstitution  and that the State Government has no power  to
\nestablish or notify Gram Sabha.\n<\/p>\n
6.   It will appear from the impugned judgment that its main
\nthrust\tis against the definition of ‘village’ in Section  2
\n[t]  of\t the  Act.  The other  findings\t are  directed\tmore
\nagainst\t the  procedure\t laid down in the Act  to  take\t the
\nvarious\t steps for constituting the panchayats than  against
\nthe  substantial  provisions.\tBefore\twe  deal  with\t the
\nfindings  of  the High Court, we may usefully refer  to\t the
\nrelevant provisions of the Constitution and the Act.\n<\/p>\n
7.   The  provisions of Article 40, to give effect to  which
\nthe  73rd  Constitutional  Amendment was  effected  read  as
\nfollows:\n<\/p>\n
\t      “40.  Organisation of village panchayats,\t The
\n\t      States  shall take steps to  organise  village
\n\t      panchayats and endow them with such powers and
\n\t      authority\t as may be necessary to enable\tthem
\n\t      to function as units of self-government.\n<\/p><\/blockquote>\n
8.   The  aforesaid provisions neither define ‘village’\t nor
\ngive guidelines for organising village panchayats.  All that
\nthey  require  is  that\t the  village  panchayats  howsoever
\norganised have to be equipped with such powers and authority
\nas  may be necessary to enable them to function as units  of
\nself-government.  There is, however, no doubt that when\t the
\nArticle\t speaks\t of  village panchayats as  units  of  self-
\ngovernment,  it has in view the Organisation of\t the  lowest
\nlevel  units  of self-governance in the hierarchy  of  self-
\ngoverning,  democratic,\t policy\t making\t and  administrative
\nunits.\tIn other words, the village panchayats are envisaged
\nby  the\t Article as the base democratic\t institutions  of  a
\npyramid\t of  the democratically\t organised  and\t functioning
\nself-governing\tunits.\tThis being so, while organising\t the
\nvillage panchayats, what is necessary to be kept in mind  is
\n[a]  that  they are to be the self governing  units  at\t the
\nlowest\tend of the democratic polity, [b] that\tbeing  self-
\ngoverning  units, those who are governed by the\t said  units
\nand  for whose benefit they are going to operate, will\thave
\neither\ta direct or an elective indirect  representation  in
\nthem;  [c]  that  they will have an  effective\tsay  in\t the
\nconduct\t of their affairs including its plans, policies\t and
\nprogrammes  and their execution and [d] that thus they\twill
\nhave not only a sense and satisfaction of participation\t but
\nalso  an experience in the governance of their own  affairs.
\nSo  long as the village panchayats are organised to  achieve
\nthe  said objectives, the requirements of the  said  Article
\nwill  have  been complied with both in their spirit  and  in
\nletter.\n<\/p>\n
9.   We\t may  now  turn\t to  the  provisions  of  the\t73rd
\nConstitutional\tAmendment  by which Part  IX  consisting  of
\nArticles  243  to  243-0 has been  introduced  in  the\tCon-
\nstitution.\n<\/p>\n
10.  Article  243  [g] defines ‘Village’ to mean  a  village
\nspecified  by  the Governor by public notification to  be  a
\nvillage\t for  the purposes of the said Part and\t includes  a
\ngroup  of villages so specified.  It will be  apparent\tfrom
\nthis  definition of ‘village’ that on the one hand, it\tdoes
\nnot stock to any particular, much less the vintage con-\n<\/p>\n
259<\/span><\/p>\n
cept  of village that the High Court has in mind, viz.,\t the
\nanthropologically  evolved and\tsociologically\tidentifiable
\nhabitat\t and  on the other, it gives the Governor  power  to
\nspecify\t a  village  as he may deem  fit.   The\t village  so
\nspecified  by  him  may include a group\t of  villages.\t The
\nConstitution  permits the Governor to declare any  populated
\nrural area as a village.  The village which the Governor has
\nto specify is a village for the purpose of carrying out\t the
\nprovisions  of Part IX of the Constitution and not  for\t any
\nother purpose.\tHence to bring in any particular concept  of
\nvillage and to read into the said Article any  pre-conceived
\nnotion of village is unwarranted by law.\n<\/p>\n
11.  Article  243  [b] defines ‘Gram Sabha’ to mean  a\tbody
\nconsisting  of\tpersons registered in  the  electoral  rolls
\nrelating to a village comprised within the area of panchayat
\nat the village level.  In other words, it is the  electorate
\nof  the village panchayat whether the panchayat is  for\t one
\nvillage\t or  a group of villages.  Article 243\t[d]  defines
\n‘panchayat’ to mean an institution [by whatever name called]
\nof  self government constituted under Article 243B  for\t the
\nrural  areas.\tThis provision further makes it\t clear\tthat
\neven  the  expression ‘panchayat’ is not of  any  particular
\nsignificance.  What is of essence is that the institution so
\ncalled\tmust be of self government in the rural\t area  since
\nthe  panchayat\traj  envisaged\tby  the\t said  Part  of\t the
\nConstitution is for the rural as against the urban areas for
\nwhich  a  provision is made in another part of\tthe  Consti-
\ntution.\t Much sentiment may not, therefore, be wasted on the
\nexpression  ` panchayat’.  The attention on the other  hand,
\nhas  to be focussed on the question whether the\t institution
\nso constituted is self-governing or not.\n<\/p>\n
12.  The panchayats are to be constituted    at the village,
\nintermediate and district levels and the “panchayat area” as
\ndefined by Article 243 [e] means the territorial area of the
\npanchayat  whether at the village, intermediate or  district
\nlevels.\t What is necessary to remember further is that while
\nas  per\t Article  243 [c] “intermediate level”\tis  a  level
\nbetween the village and district levels, as specified by the
\nGovernor,  the\t‘district’ as per Article 243  [a]  means  a
\ndistrict  in a State the boundaries of which may be  changed
\nby the State Government.  The district is not required to be
\nspecified  by the Governor whereas village and\tintermediate
\nlevels\thave to be specified by him for the purposes of\t the
\nsaid Part of the Constitution.\n<\/p>\n
13.  Article 243-A states that a Gram Sabha which, as stated
\nabove, is the electorate of the village panchayat, may exer-
\ncise  such powers and perform such functions at the  village
\nlevel  as the legislature of the State may by  law  provide.
\nIn  other  words, the powers and functions  of\tthe  village
\npanchayat  are\tto  be\tdetermined  by\ta  State  enactment.
\nArticle\t 243-B\tstates\tthat  there  shall  be\t constituted
\npanchayats at the village, intermediate and district  levels
\nin  accordance with the provisions of the said Part  of\t the
\nConstitution.\tHowever, in a State having a population\t not
\nexceeding  20  lakhs,  it is not  obligatory  to  constitute
\npanchayats at the intermediate level.\n<\/p>\n
14.  Article  243-C  gives  direction  with  regard  to\t the
\ncomposition  of\t panchayats at different  levels.   What  is
\nnecessary     for  our\t purpose  to  note  from  the\tsaid
\nprovisions is that throughout the State the number of
\n260<\/span>
\nseats on each panchayat have to have, as far as practicable,
\na uniform ratio to the population comprised in the panchayat
\narea.\tThe  panchayat area is further to  be  divided\tinto
\nterritorial constituencies and the constituencies are to  be
\nso delimited as to maintain throughout the panchayat area  a
\nuniform\t ratio between the population of  each\tconstituency
\nand  the  number  of  seats  allotted  to  it,\tas  far\t  as
\npracticable.  Further, the seats in the panchayat are to  be
\nfilled\t  by   direct\telection   from\t  the\t territorial
\nconstituencies.\t  The chairpersons of the panchayats at\t the
\nvillage level have to have representation in the  panchayats
\nat the intermediate level if constituted and at the district
\nlevel,\tif  not\t constituted, and the  chairpersons  of\t the
\npanchayats at intermediate level where they are\t constituted
\nare to have representation in the panchayats at the district
\nlevel.\t In  addition, the Article directs  that  the  State
\nenactment  may\talso provide for the representation  of\t the
\nMembers\t  of  Parliament  and  of  the\tState\tLegislature.
\nChairpersons  of the panchayat at the village level have  to
\nbe  elected  in\t such manner as the  State  legislation\t may
\nprovide\t while\tthe  chairpersons of the  panchayat  at\t the
\nintermediate  level or district level are to be\t elected  by
\nand from amongst the elected members thereof.\n<\/p>\n
15.  Article 243-D makes provision for reservation of  seats
\nfor  the Scheduled Castes, Scheduled Tribes including  women
\nbelonging to Scheduled Castes\/Scheduled Tribes and also\t for
\nother  women in the panchayats at all the  levels.   Article
\n243-E  provides for the term of the panchayat which is\tfive
\nyears.\tArticle 243-F provides for disqualifications for the
\nmembership of the panchayat.  Article 243-G speaks of powers
\nfunctions  and\tresponsibilities  of  the  panchayat  to  be
\ndetermined by the legislature of the State.  It states\tthat
\nthe  legislature of a State may by law endow the  panchayats
\nwith such powers and authority as may be necessary to enable
\nthem to function as institutions of self government and such
\nlaw  may contain pro. visions for the devolution  of  powers
\nand  responsibilities  upon panchayats\tat  the\t appropriate
\nlevel,\tsubject\t to  such conditions  as  may  be  specified
\ntherein\t with  respect to [a] the preparation of  plans\t for
\neconomic  development  and  social  justice;  and  [b]\t the
\nimplementation\tof  schemes  for  economic  development\t and
\nsocial\tjustice as may be entrusted to them including  those
\nin relation to the matters listed in the Eleventh  Schedule.
\nThe Eleventh Schedule mentions as many as 29 matters some of
\nwhich are necessary to be enumerated here to point out\tthat
\nit  is only a financially and administratively\tviable\tunit
\nwhich  can undertake the schemes of development relating  to
\nthem.  They are: [1] Minor irrigation, water management\t and
\nwatershed   development,  [2]  Social  forestry\t  and\tfarm
\nforestry,   [3]\t Small\tscale  industries,  including\tfood
\nprocessing  industries,\t [4]  Khadi,  village  and   cottage
\nindustries, [5] Rural housing, [6] Roads, culverts, bridges,
\nferries,  waterways  and other means of\t communication,\t [7]
\nRural\t electrification,    including\t  distribution\t  of
\nelectricity, [8] Nonconventional energy sources, [9] Poverty
\nalleviation  programme , [10] Education,  including  primary
\nand   secondary\t  schools,  [11]  Technical   training\t and
\nvocational  education, [12] Markets and fairs,\t[13]  Health
\nand sanitation, including hospitals, primary health  centres
\nand  dispensaries,  [14] Women and child  development\t[15]
\nSocial\twelfare,  including welfare of the  handicapped\t and
\nmentally retarded  and [16] Welfare of the weaker  sections,
\nand in particular of the Scheduled Castes and
\n261<\/span>
\nthe Scheduled Tribes.\n<\/p>\n
16.  Article   243-H   speaks  of  power  that\t the   State
\nlegislature may give to the panchayats to levy, collect\t and
\nappropriate  taxes,  duties,  tolls and\t fees  and  also  of
\nassigning  such of them as arc levied and collected  by\t the
\nState  Government,  to provide for  grants-in-aid  from\t the
\nConsolidated  Fund of the State and also to provide for\t the
\nconstitution  of  Funds for crediting all  moneys  received,
\nrespectively  by or on behalf of the panchayats and for\t the
\nwithdrawal  of the moneys therefrom.  Article  243-1,  among
\nothers, provides for the constitution of Finance  Commission
\nby  the\t Governor  of  the State  to  review  the  financial
\nposition  of the panchayats at the end of every five  years.
\nArticle\t 243-J requires the State to make law to  make\tpro-
\nvision\twith respect to the maintenance and auditing of\t the
\naccounts of the panchayats.\n<\/p>\n
17.  Article 243-K provides for a State Election  Commission
\nto conduct, supervise, direct and control the elections\t in-
\ncluding the electoral rolls.  Article 243-0 states that\t the
\nvalidity  of  any  law\trelating  to  the  delimitation\t  of
\nconstituencies\t or   the  allotment  of   seats   to\tsuch
\nconstituencies\tmade or purporting to be made under  Article
\n243-K, shall not be called in question in any court, and  no
\nelection to any panchayat shall be called in question except
\nby  an election petition presented to such authority and  in
\nsuch  manner as is provided for by or under any law made  by
\nthe  Legislature  of  a State.\tIt is in the  light  of\t the
\naforesaid  provisions  of the Constitution that we  have  to
\nexamine the provisions of the State Act.\n<\/p>\n
18.  As\t stated earlier the State enactment, viz,  the\tU.P.
\nPanchayat  Raj Act, 1947, has been amended and brought\tupto
\ndate  to bring it in conformity with the amended  provisions
\nof  the\t Constitution, viz., Article 243 to  Article  243-0.
\nSection 2 [g] of the Act accordingly defines ‘Gram Sabha’ to
\nmean  a\t body  established  under  Section  3  of  the\t Act
\nconsisting of persons registered in the electoral rolls\t re-
\nlating\tto  a village comprised within the area\t of  a\tgram
\npanchayat,  and\t ‘gram\tpanchayat’ has\tbeen  defined  under
\nSection\t 2 [h] to mean the gram panchayat established  under
\nSection\t 12 of the Act.\t Section 2 [hh] of the\tAct  defines
\nFinance\t  Commission   to  mean\t  the\tFinance\t  Commission
\nconstituted  under Article 243-1.  Section 2  [hhh]  defines
\n‘Kshettra   Panchayat’\twhich  is  the\tpanchayat   at\t the
\nintermediate  level,  and  it has the  same  meaning  as  is
\nassigned  to it under clause [6] of Section 2 of  the  Uttar
\nPradesh\t Kshettra Panchayats and Zila Panchayats  Adhiniyam,
\n1961  whereas ‘Zila Panchayat’ which is the  district  level
\npanchayat  will\t have the meaning assigned to it  under\t the
\nsaid Adhiniyam by clause [11] of Section 2 thereof Section 2
\n[kk]  defines ‘State Election Commission’ to mean the  State
\nElection  Commission  referred to in Article  243-K  of\t the
\nConstitution.\n<\/p>\n
19.Section  2 [t] of the Act defines ‘village’ to  mean\t any
\nlocal  area recorded as a village in the Revenue  record  of
\nthe  district in which it is situate and includes  any\tarea
\nwhich the State Government may, by general or special order,
\ndeclare to be a village for the purpose of the Act.\n<\/p>\n
20.  Section 3 of the Act provides for the establishment  of
\nGram Sabha for a village or a group of villages by such name
\nas  may\t be specified.\tIt also states that where  the\tgram
\nsabha is established for a
\n262<\/span>
\ngroup  of  villages,  the name of  the\tvillage\t having\t the
\nlargest\t population, shall be specified as the name  of\t the
\ngram sabha.\n<\/p>\n
21.  Section  5-A  gives the disqualifications of  a  person
\nfrom  being  chosen  as\t and for being\ta  member  of  grain
\npanchayat.   Section  6\t states that a member  of  the\tgram
\npanchayat  shall  cease\t to be such member if  his  name  is
\ndeleted\t from  the  electoral  roll  of\t the   constituency.
\nSection 9 states that for each territorial constituency of a
\ngram sabha an electoral roll shall be prepared in accordance
\nwith  the provisions of the Act under  the  superintendence,
\ndirection  and control of the State Election Commission\t and
\nthat  it  shall be published in the  prescribed\t manner\t and
\nshall, subject to any alteration, addition or  modification-
\nmade  under or in accordance with the Act, be the  electoral
\nroll  for the territorial constituency concerned.   It\talso
\ngives  the  qualifications for being an elector\t and  states
\nthat  every person who is not less than 18 years of  age  on
\nthe first day of January of the year in which the  electoral
\nroll  is prepared, will be entitled to be registered in\t the
\nelectoral  roll for the territorial constituency. It is\t not
\nnecessary  to  refer  to the other provisions  of  the\tsaid
\nsection regarding the qualifications, except to\t sub-section
\n11  thereof which states that the State Election  Commission
\nmay  for the purposes of preparation of the  electoral\troll
\nfor a territorial constituency adopt the electoral roll\t for
\nthe Assembly constituency prepared under the  Representation
\nof  the People Act, 1950 for the time being in force so\t far
\nas it relates to the area of that territorial  constituency.
\nSection 9-A provides that a person whose name is entered  in
\nthe  electoral\troll  for the  territorial  constituency  is
\nentitled  to  in any election and is eligible  for  election
\nnomination  or\tappointment  to\t any  office  in  the\tgram
\npanchayat.  However, a person who has not completed the\t age
\nof 21 years shall not be qualified to be elected as a member
\nor office bearer of the gram panchayat.\n<\/p>\n
22.  Section  11 provides for the meetings and functions  of
\ngram   sabha.\tSubsection  [3]\t thereof  speakers  of\t the
\nfunctions  of  gram sabha which, among\tothers,\t consist  of
\nconsidering [a] the annual statement of accounts of the gram
\npanchayat,  the\t report of administration of  the  preceding
\nfinancial year and the last audit note and replies, if\tany,
\nmade  thereto,\t[b]  the report in  respect  of\t development
\nprogrammes  of the Gram Panchayat relating to the  preceding
\nyear  and the development programmes proposed to  be  under-
\ntaken  during the current financial year; [c] the  promotion
\nof  unity and harmony among all sections of society  in\t the
\nvillage,  [d]  programmes  of  adult  education\t within\t the
\nvillage,  and [e] such other matters as may  be\t prescribed.
\nSub-section  [5] thereof requires gram sabha to perform\t the
\nfunctions   of\t [a]   mobilising   voluntary\tlabour\t and
\ncontributions  for  the community  welfare  programmes;\t [b]
\nidentification\tof beneficiaries for the  implementation  of
\ndevelopment  schemes  pertaining  to the  village;  and\t [c]
\nrendering  assistance, in the implementation of\t development
\nschemes pertaining to the village.\n<\/p>\n
23.  Section  11-A  provides for Pradhan and  Up-Pradhan  of
\ngram  panchayat\t who  are  to  be,  chairperson\t  and  vice-
\nchairperson  respectively  thereof under the Act.   It\talso
\nprovides  for  reservation of offices of  Pradhans  for\t the
\nScheduled Castes, Scheduled Tribes and the backward classes.
\nSection 11-B provides for the direct election
\n263<\/span>
\nof Pradhan or chairperson by the electorate in the panchayat
\narea  from  amongst themselves.\t Section 11-C  provides\t for
\nelection of Up-Pradhan by the members of the gram  panchayat
\nfrom  amongst themselves.  The term of both the Pradhan\t and
\nUp-Pradhan is co-terminus with that of the grain panchayat.\n<\/p>\n
24.Section  11-F provides for declaration of panchayat\tarea
\nand states that the State Government may by notification de-
\nclare  any  area comprising a village or group\tof  villages
\nhaving\tso far as practicable, a population of 1000 to be  a
\npanchayat area by such name as may be specified.  The  first
\nproviso\t to the said section, however, states that  for\t the
\npurposes  of  declaration  of a panchayat  area\t no  revenue
\nvillage or any hamlet thereof shall be divided.\t The  second
\nproviso\t makes\ta provision for the hill  districts  of\t the
\nState and states that if a village or group of villages does
\nnot  have  population  of 1000,\t the  State  Government\t may
\ndeclare\t the area within a radius of 5 kms. from the  centre
\nof  the\t village to be panchayat area though such  area\t may
\nhave a population of less than 1000.  Sub-section [2] of the
\nsaid  section  also gives power to the State  Government  to
\nmodify\tthe panchayat area or to alter the name of the\tarea
\nor  to declare that any area shall cease to be\ta  panchayat
\narea  on  the  request\tof a  gram  panchayat  concerned  or
\notherwise.\n<\/p>\n
25.Section  12\tprovides  for  the  establishment  of\tgram
\npanchayat  for\tevery panchayat area.  Section\t12  [1]\t (c)
\nstates that the grain panchayat shall consist of a panchayat
\nand  in case of a panchayat area having a population of\t [1]
\none  thousand,\tthe panchayat will have nine  members,\t[ii]
\nwhere the population is more than one thousand but not\tmore
\nthan  two thousand,it will have eleven members,\t [iii]\twhen
\nthe  population is more than two thousand but not more\tthan
\nthree thousand, it will have thirteen members; and [iv] when
\nthe  population\t is more than three thousand, it  will\thave
\nfifteen members.  Thus Section 12 [1] [c] read with  Section
\n11-F-[1],  gives  a parameter of the size of  the  panchayat
\narea mainly on population basis in the non hill areas and on
\ngeographical basis in the hill areas and provides that there
\nshall  be a panchayat of a Pradhan and nine members  for  at
\nleast every village in the non hill area having a population
\nof 1000, and of even less in the hill area.  The territorial
\nconstituencies for election as members to the gram panchayat
\nare to be formed in such a manner that the ratio between the
\npopulation  of\teach constituency and the  number  of  seats
\nallotted  to  it, shall so far as practicable, be  the\tsame
\nthroughout  the panchayat area.\t Each territorial  constitu-
\nency of a gram panchayat is to be represented by one  member
\nin  the\t gram panchayat.  Not less than 1\/3rd of  the  scats
\nearmarked   for\t Scheduled  Castes,  Scheduled\tTribes\t and
\nbackward  classes  under  sub-section  [5]  (a)\t are  to  be
\nreserved for the women of those categories whereas not\tless
\nthan  1\/3rd  of\t the  total number  of\tscats  in  the\tgram
\npanchayat shall be reserved for women.\n<\/p>\n
26.The superintendence, direction and control of the conduct
\nof the election to the office of the Pradhan and  Up-pradhan
\nor  a member of the gram panchayat is entrusted\t by  section
\n12-BB to the State EIection Commission.\t An application\t for
\nquestioning the elections is to be made to such authority as
\nmay  be prescribed.  Section 12. I bars the jurisdiction  of
\ncivil  ‘courts to question the legality of any action  taken
\nor any decision given by an officer or author-\n<\/p>\n
264<\/span><\/p>\n
ity.  Section 14 provides for the removal of Pradhan and Up-
\nPradhan\t in certain circumstances.  Section 15 mentions,  as
\nmany as 30 functions of gram panchayat which are of the same
\npattern\t as those mentioned in the Eleventh Schedule of\t the
\nConstitution,  to  some of which we have  made\ta  reference
\nearlier.   The only additional function entrusted under\t the
\nAct  is of the preparation of plan for economic\t development
\nof the area of the Gram Panchayat.\n<\/p>\n
27. Section 15A requires the gram panchayat to prepare every
\nyear a development plan for the panchayat area and to submit
\nit to the Kshettra panchayat concerned and Section 16  makes
\nprovision for assigning to it any or all die following func-
\ntions,\tviz.,  [a] management and maintenance  of  a  forest
\nsituated   in\tthe  Panchayat\tarea;  [b]   management\t  of
\nwastelands,  pasture lands or vacant lands belonging to\t the
\nGovernment   situated\twithin\tthe  Panchayat\t area,\t [e]
\ncollection  of\tany tax or land revenue and  maintenance  of
\nrelated\t records.  Section 17 refers to the powers  of\tgram
\npanchayat as to public streets, waterways and other matters.
\nSection 18 provides for the improvement of sanitation.\tSec-
\ntion 19 provides for maintenance and improvement of  schools
\nand  hospitals.\t  Section 20 provides for  establishment  of
\nprimary\t school, hospital, dispensary, road or bridge for  a
\ngroup of gram panchayats.  Section 24 provides for power  of
\na  gram\t panchayat to contract for collection of  taxes\t and
\nother dues.  Section 25 gives power to the gram panchayat to
\nappoint such staff as may be necessary.\t Section 32 provides
\nfor the constitution of a Gaon fund for each gram panchayat.
\nSection 32-A gives power to the State Government to  consti-
\ntute  a\t Finance  Commission.  Section 34  states  that\t all
\nproperties  situated  within  the  jurisdiction\t of  a\tgram
\npanchayat  shall vest in and belong to the  gram  panchayat.
\nSection 36 gives power to the gram panchayat to borrow money
\nwhereas\t Section 37 gives it power to levy taxes  and  fees.
\nIt is not necessary to refer to other provisions of the\t Act
\nfor our purpose.\n<\/p>\n
28.We  may now refer to the criticism by the High  Court  of
\ncertain\t provisions  of\t the Act as being  ultra  vires\t the
\nConstitution.\n<\/p>\n
29.As  stated earlier, the main thrust of the  High  Court’s
\njudgment is against the concept of ‘Village’ as incorporated
\nin the definition of “village” in Section 2 [t] of the\tAct.
\nThe  High Court has found fault with the said definition  on
\ntwo counts.  According to it, firstly, Section 2 [t] is\t in-
\nconsistent  with the concept of village as  contemplated  by
\nArticle\t 243 [g] of the Constitution and  secondly,  whereas
\nthe  said  Article  requires the Governor of  the  State  to
\nspecify\t the village, Section 2 [t] gives the power  to\t the
\nState Government to declare it,\n<\/p>\n
30.As  regards the alleged difference in the  definition  of
\n“village”  in  the  Act and in\tthe  Constitution,  we\thave
\nalready\t referred  to  the  fact  that\tArticle\t 40  of\t the
\nConstitution  does  not define ‘village’ as such.   It\tonly
\nrefers to the Organisation of “village panchayats” as  units
\nof self-government.\n<\/p>\n
31.’Village’ has been defined in the Shorter Oxford  English
\nDictionary [1993 Edition] to mean “a self-contained group of
\nhouses and associated buildings, usu. in a country area-, an
\ninhabited  place  larger than a hamlet and  smaller  than  a
\ntown;… a small self-contained district or community
\n265<\/span>
\nwithin\t a  city  or  town,  regarded  as  having   features
\ncharacteristic\tof  a  village”.   The\tLaw  Lexicon  by  P.
\nRamanatha  Aiyar [1987 Ed.] states that\t ‘village’  includes
\n[a]  a\tvillage-community;  [b]\t village-lands;\t [c]  rivers
\npassing\t through  or by village-lands; and [d]\ta  group  of
\nvillages.   The expression ‘village’ connotes ordinarily  an
\narea  occupied\tby  a  body of\tmen  mainly  dependent\tupon
\nagriculture  or occupations subservient thereto.   When\t the
\narea  is  occupied  by persons who  are\t engaged  mainly  in
\ncommercial  pursuits, rural areas in the vicinity of a\ttown
\ngrow into a suburb of the     town.\n<\/p>\n
32.  The Encyclopedia Americana [1983 Ed.] [Vol. 28]  states
\nthat village is
\n\t      “a  type\tof community,  generally  small\t but
\n\t      without\texact  or  commonly  accepted\tsize
\n\t      limits.  Generally, in the United States,\t the
\n\t      village is thought to be intermediate  between
\n\t      the hamlet [a settlement with several families
\n\t      and some form of commerce but no more than  50
\n\t      people]  and  the town [generally\t over  1,000
\n\t      people].\n<\/p>\n
Dealing\t with  the origin and evolution village,  it  states
\nthat-\n<\/p>\n
\t      “the  village  is the typical  form  of  rural
\n\t      settlement  in  most of the world\t  in  Europe
\n\t      [except  for  Great  Britain]  ‘in  Asia,\t  in
\n\t      Africa,  and in much of South America…..  It
\n\t      often seems to be the result of the settlement
\n\t      of  lands\t that previously  were\tonly  thinly
\n\t      occupied\t by  indigenous\t  populations,\t but
\n\t      probably\talso derives from the  emergence  of
\n\t      clear-cut private proprietorship of land.\t  In
\n\t      much of Europe and in many other areas of\t the
\n\t      world,  communal land ownership  prevailed  in
\n\t      the  past, and this property  arrangement\t was
\n\t      one  basis  for  the  village  form  of  rural
\n\t      settlement,  the community being set amid\t the
\n\t      tillage and grazing lands.”\n<\/p><\/blockquote>\n
\t      x\t       x\tx\t x
\n\t      ”\t Growing awareness of the  nearly  universal
\n\t      appearance   of\tthe   agricultural   village
\n\t      prompted\tmany  social theorists in  the\t19th
\n\t      century  to  suggest  that  such\t Communities
\n\t      represented     a\t universal  stage  in  human
\n\t      evolution.   Such\t simplifying  theories\tlost
\n\t      support as evidence of the great diversity  of
\n\t      human  cultures  and the Paths of\t change\t was
\n\t      accumulated.    The  interpretation   of\t the
\n\t      village\tpattern\t  is  now  more\t  nearly   a
\n\t      functional  one.\t With  settled\tagriculture,
\n\t      village\t  orientation\t provides     mutual
\n\t      protection, sociability, a measure of economic
\n\t      specialisation  [such as handicrafts], and  at
\n\t      least the of local government.\n<\/p><\/blockquote>\n
\t      Since    size-limits   will   not\t   precisely
\n\t      distinguish  villages  from  other  types\t  of
\n\t      communities, the question arises as to whether
\n\t      the  term\t has a precise\tAll  communities  or
\n\t      settlements   called   villages\tin   popular
\n\t      language\t or  technical\tstudies\t cannot\t  be
\n\t      brought\twithin\t a   common   definition….<\/p><\/blockquote>\n
\t      Generally, however, a village isa\t residential
\n\t      and   trading  center  for   a   predominantly
\n\t      agricultural    its   social   controls\t are
\n\t      predominantly  traditional and informal;\tmore
\n\t\t\t    formal administration and government arc  typi\n<\/p>\n
–\n<\/p>\n
\t      cal of cities and towns.\tIts self-sufficiency
\n\t      may  be nearly complete, as in some  parts  of
\n\t      the  Far East and Latin America, or  seriously
\n\t      impaired\t    by\t   modem      tranportation,
\n\t      communication,   and   agencies\tof   central
\n\t      government.   The population of  the  village,
\n\t      unlike that of most cities and many towns,  is
\n\t      self-recruited rather Om immigrant.  This, and
\n\t      the   traditional\t  informality\tof    social
\n\t      standards\t  and  controls,  lends\t a  distinct
\n\t      quality\tof   homogeneity   that\t  the\tmore
\n\t      cosmopolitan center does
\n\t      266<\/span>
\n\t      not have.\n<\/p><\/blockquote>\n
\t      The collapse of the theory that the village is
\n\t      the  basic community of all civilizations\t did
\n\t      not end the idealization of the village.\t Yet
\n\t      even  the\t informal  and\ttraditional   social
\n\t      controls\tof  the\t village  can  be  extremely
\n\t      restrictive, certainly more so than the  fomal
\n\t      tolerance\t of  difference\t that  the  cultural
\n\t      heterogeneity   of  the  city  encourages\t  or
\n\t      requires.\t  And  it  cannot  be  assumed\tthat
\n\t      villages\tare democratic.\t  European  villages
\n\t      are often dominated by one or a few  families,
\n\t      some  of which may claim descent\tfrom  feudal
\n\t      rulers.\tThe village in India is often  ruled
\n\t      by a council [panchayat] of the leading  caste
\n\t      or by a few principal landlords.\tEven in\t the
\n\t      United  States,  with its\t short\thistory\t and
\n\t      absence\t of   an   officiallyu\t  recognized
\n\t      aristocracy,  leading families am more  likely
\n\t      to  receive  deference  in  villages  than  in
\n\t      larger  and more impersonal communities.\t The
\n\t      integration of village life, or lack of social
\n\t      problems\tand  tensions,\thas  also  been\t ex-
\n\t      aggerated.   Conflicts  may  smolder  or\tburn
\n\t      brightly,\t all  the more because\tthe  parties
\n\t      know each other and personalize the antipathy.
\n\t      In Europe and Asia, the village has  exhibited
\n\t      a remarkable power of survival amidst currents
\n\t      of  rapid\t social change.\t Rural\tAmerica\t has
\n\t      been  much  more\tprofoundly  affected   bythe
\n\t      encroachments    of    an\t    urban-industrial
\n\t      civilization.   Many small towns,\t technically
\n\t      villages, have virtually di–appeared as their
\n\t      economic and other social functions have\tbeen
\n\t      absorbed\tby nearby cities.  Village life\t may
\n\t      endure  a while longer in the  United  States,
\n\t      but  the sense of continuity and communal\t in-
\n\t      tegrity  are difficult to maintain  with\thigh
\n\t      rates of residential mobility and in the\tface
\n\t      of  steady  inroads of  an  essentially  urban
\n\t      civilization.<\/p><\/blockquote>\n
\t      The  village  community may be  defined  as  a
\n\t      group   of  people  who  live  ill   permanent
\n\t      dwellings\t  in  a\t defined   territory   which
\n\t\t\t    includes arable land sometimes held in  common
\n.\n<\/p>\n
\t      If cattle is kept, as is often the case, it is
\n\t      pastured\ton  non-cultivated  meadowland\tover
\n\t      which  the  community claims  right.   Further
\n\t      characteristics include a predominance of\t ag-
\n\t      ricultural  occupations, a close\trelationship
\n\t      to  the natural environment,  strong  internal
\n\t      cohesion,\t and a relative absence of  internal
\n\t      stratification\t and\tof     occupational,
\n\t      territorial, and vertical social mobility.  As
\n\t      such, the village is a specific type of  rural
\n\t      settlement, but not the only One.\n<\/p>\n
\t      x\t       x\tx\t x\t  x
\n\t      The scientific study of the village  community
\n\t      did  not\tstart until the middle of  the\t19th
\n\t      century…… Sir Henry Maine [1822-1888], one
\n\t      of  the first English writers on\tthis  topic,
\n\t      held the theory that the village community was
\n\t      originally  founded by a group of kin  related
\n\t      people   who   settled  independently   in   a
\n\t      specified\t  spot.\t  In  time,   the   original
\n\t      households  branched  out into  many  separate
\n\t      ones,  clearing more load as the\tneed  arose.
\n\t      Occasionally they included strangers, who were
\n\t      sometimes adopted but more often relegated  to
\n\t      second class membership, tolerated rather that
\n\t      accepted.\t  If one family became extinct,\t its
\n\t      share  of\t land  was returned  to\t the  common
\n\t      stock.  Only in later times, under pressure of
\n\t      more  highly developed  political\t structures,
\n\t      did the village community\t become feudalistic.<\/p>\n
\t      the  land\t was  then  owned  by  a  ruler\t who
\n\t      received\t tribute   in  kind   and   promised
\n\t      protection     in\t   return.     Often\t the
\n\t      responsibilities of supervision and collection
\n\t      were  transferred\t to  other  members  of\t the
\n\t      aristocracy.   Maine based his case  for\tthis
\n\t      presumed\tdevelopment upon analysis  of  Roman
\n\t      law [Ancient Law, 1861] and upon practices  in
\n\t      Russia, southeastern European countries,\tanti
\n\t      specifically  India, where he had carried\t out
\n\t      extensive field research [Village com
\n\t      267<\/span>
\n\t      munities in the East and West, 1871].\n<\/p>\n
\t      Several  other  scholars\tcriticized   Maine’s
\n\t      theoretical\t      reconstructions-Modern
\n\t      anthropologists  and  sociologists  take\t the
\n\t      position\tthat both developments\ttook  place.<\/p>\n
\t      They   recognize\t that  the   evolution\t and
\n\t      structure\t     of\t human\t settlements\t  in
\n\t      general, and of village unities in particular,
\n\t      are closely connected with specific historical
\n\t      developments  and ecological,  sociopolitical,
\n\t      economic and religious circumstances which are
\n\t      different\t from  place to\t place.\t  With\tthis
\n\t      recognition,  questions  of  absolute  origins
\n\t      have  generally been replaced by an  increased
\n\t      interest\tin  the structure  and\tfunction  of
\n\t\t\t    village  communities, in an attempt to  gain
\na
\n\t      basic understanding of the essential nature of
\n\t      living arrangements therein.\n<\/p>\n
\t      x\t       x\tx\t x\t  x
\n\t      As  their\t characteristic\t features,   peasant
\n\t      villagers\t show strong internal  cohesion\t and
\n\t      tendencies  to  restrict membership  to  those
\n\t      born  within  the community.  Rules  of  local
\n\t      endogamy\t sometimes  reinforce  this   trend.
\n\t      Membership in the community is demonstrated by
\n\t      participation  in\t religious  rituals,   which
\n\t      frequently  stress the power of the  community
\n\t      to  deal\twith the  supernatural\trather\tthan
\n\t      reliance upon individual piety.  Economically,
\n\t      a\t  peasant  produces  mainly  for   his\t own
\n\t      household’s consumption, although he also uses
\n\t      part  of his product to exchange in  a  market
\n\t      for  other goods and services.  These  markets
\n\t      are  often local and differ in structure\tfrom
\n\t      those  in\t the cities.   Although\t some  city-\n<\/p>\n
\t      produced goods reach the peasant level,  there
\n\t      is a tendency to limits the flow of city goods
\n\t      into the community.\n<\/p>\n
\t      Politically, peasant villages are now  usually
\n\t      parts  of\t national states  and  theoretically
\n\t      possess the rights and duties involved in such
\n\t      membership.   But\t the village  community\t has
\n\t      frequently  retained  mechanisms\tof  internal
\n\t      control,\twhether through\t government-approved
\n\t      local  leadcis or through informal  leadership
\n\t      and  community sanctions.\t  Emotional  attach-
\n\t      ments  face  inward.  The\t individual’s  first
\n\t      loyalty  is  to his family, the  to  his\tcom-\n<\/p>\n
\t      muaity,  and only then to whatever is  beyond.
\n\t      The various elements of this  characterization
\n\t      may   be\tdeveloped  more\t strongly  in\tsome
\n\t      villages\tthan in others, but as a  type\tthey
\n\t      are  recognizable\t and clearly  distinct\tfrom
\n\t      tribal  groups, farming settlements, and\tcity
\n\t      formations.  ”\n<\/p>\n
33.  It\t is common knowledge that the needs  of\t the  people
\nchange with the development in the economic, scientific\t and
\ntechnologic   fields  as  also\twith  the  developments\t  in
\ntransport  and\tcommunication.\tWith them,  the\t concept  of
\nselfsufficiency\t and  the  means, mode and  range  of  self-
\ngovernance  also change.  What is more, the units  of  self-
\ngovernance  at the lower level being interrelated and  inte-
\ngrated with those at the higher levels as parts of the whole
\nscheme of administration and development in the State,\thave
\nto  respond to and fall in line with the growth in the\tsize
\nand  operation\tof the units at the higher level to  form  a
\ncoordinated democratic polity and administrative  machinery.
\nThe  concept  of grassroot or  lowest  level  administration
\nmust,  therefore,  necessarily change with the\tadvance\t and
\nprogress at other levels.  The governing units at all levels
\nhave to fit in in a pattern, and a scheme for administration
\nboth  for law and order and economic growth.  They  have  to
\nact as vehicles of overall stability and progress.  For that
\npurpose,  their constitution and functioning have to  be  in
\nconformity  with the larger social, political  and  economic
\ngoals.\n<\/p>\n
34. Hence there cannot be any immu-\n<\/p>\n
268<\/span><\/p>\n
table social, political, economic or organisational  concept
\nof  village  as\t a self governing  unit.   In  a  developing
\ncountry\t like  ours, where the population is  growing  fast,
\nwhere  the  society  is\t in ferment  on\t all  fronts,  where
\ndivisive forces of all kinds abound, where the vast majority
\nof population is illiterate and is the victim of  ignorance,
\nsuperstition,  blind-faith,  biases and prejudices,  and  is
\nshackled by tradition, and irrational customs and practices,
\nthere  is  an  urgent  need to evolve  means  to  unite\t and
\nintegrate the society, to expose the populace to larger\t and
\nhigher\tgoals, to imbibe in them the wider perspectives\t and
\nto forge a socially cohesive front for breaking the barriers
\nof  race, caste, class, religion and region rather  than  to
\npander\tto  the age-old, self-centered physical\t and  mental
\nbarriers.   As stated earlier, Article 40 not only does\t not
\ndefine “village” but also does not require that the  village
\npanchayats   should  be\t organised  on\tthe  basis  of\t any
\nparticular concept of village much less the vintage  concept
\nwhich appears to have appealed to the High Court.  There  is
\nfurther\t nothing  in  the  Mahathma  Gandhi’s  advocacy\t  of
\n“village panchayat raj” from which the High Court has  taken
\nsupport\t to suggest that the village that Mahatmaji  had  in
\nmind  was of a particular description or dimension.   It  is
\namusing\t in  this  respect to note that the  High  Court  in
\nsupport\t of  its  concept of village has even  gone  to\t the
\nextent of observing that “it must be remembered that in con-
\nsidering the aspirations of the people, more so at the first
\nlevel  of democracy, the phenomena of a case of identity  of
\nthe  people,  their  sentiments,  feelings  and\t chauvinism,
\ncannot\tbe forgotten”  the considerations which\t were,\twith
\nrespect,  farthest from the mind of Mahathmaji\tand  against
\nwhich\the   fought  throughout\t his  life.    If   separate
\nidentities,  chauvinism, divisible sentiments  and  feelings
\narc  nurtured  from the grassroot level, they are  bound  to
\nerode the foundation of the unity and integrity of the coun-
\ntry and should be the last thing on the social and political
\nagenda\tof the country.\t On the other hand, the need of\t the
\nday  is\t to create social, political and  economic  entities
\ncrossing  all barriers and wedded to the nationhood  as\t the
\nultimate  goal.\t Anthropological and  sociological  entities
\nmay   be   natural  so\tfar  as\t the  blood   and   familial
\nrelationships  and  attachments go and have their  place  in
\ncertain\t limited  spheres.   But they have  no\tplace  while
\nshaping democratic political and administrative units.\t Nor
\nare  they  necessarily\tconducive  to  social  and  economic
\nprogress.  On the other hand, they may prove and have in the
\npast  proved  a\t positive  hindrance  to  them.\t   Although,
\ntherefore,  it\tis  true  that most  of\t the  villages\thave
\ndeveloped with the initial settlement of a family or a group
\nof  families  belonging to either the same tribe  or  ethnic
\ngroup\tand  in\t that  sense  have  their   historical\t and
\nsociological identity, these identities are not\t necessarily
\nhealthy\t or  desirable\tfor  promoting\twider  and   diverse
\ninterests  and attaining larger goals.\tOn the\tother  hand,
\nthey  often prove insurmountable blockades to promoting\t the
\nideals enshrined in the Preamble of our Constitution,  viz.,
\nsocial,\t political and economic justice; liberty of  thought
\nand  expression,  belief,  faith and  worship;\tequality  of
\nstatus\tand  of\t opportunity; and  fraternity  assuring\t the
\ndignity of the individual and the unity and integrity of the
\nnation.\t  Sometimes,  smaller  the  social,  political\t and
\nadministrative\tentities, the greater the dominance  of\t one
\nsection or the other and deeper the prejudices.\t The need is
\nto   organise\tviable\tsocial,\t political,   economic\t and
\nadministrative units of optimum size
\n269<\/span>
\nat the lowest level on a rational basis keeping in mind\t the
\nsize  of  population,  the  needs  of  social  and  economic
\ndevelopment,  availability of resources, the  transport\t and
\ncommunication facilities, convenience of administration\t and
\nother  relevant\t factors.  Old is not always gold  and\tmere
\nhistoric accidents through which the villages of the concept
\nof High Court have developed, cannot justify their perpetua-
\ntion  as  political and administrative units to\t attain\t the
\nmodem  goals of social and economic progress or furnish\t the
\nrationale  for their survival as basic democratic  entities.
\nWhat  is further forgotten is that over the years, not\tonly
\nthe  population in the rural areas has grown enormously\t but
\nthe  complexion\t of  the rural areas has  also\tundergone  a
\nchange.\t  With\tthe increasing pressure on land,  there\t has
\nbeen  a\t steady migration from the rural to  the  urban\t and
\nsemi-urban  areas.  Some villages are almost deserted  while
\nothers\tsurvive\t much below the poverty line.  At  the\tsame
\ntime,  some  have  emerged as small  pockets  o\t comparative
\nprosperity,  thanks  to marginal industrial  and  commercial
\nactivities  around  them and the nearness to the  urban\t and
\nsemi-urban areas.  There is further a limit to the number of
\nvillage\t panchayats  which may be constituted with  all\t the
\noverhead expenses involved in the exercise which must have a
\nrational  relation to the result sought to be achieved.\t  In
\nthe  State o U.P., there are 1,20,000 villages.\t Before\t the
\npresent\t exercise  of constituting  the\t village  panchayats
\nunder  the Act, there were 74,000 gram sabhas which are\t now
\nreduced\t to 55,000.  With the nature and range of  functions
\nentrusted  to the new village panchayats under the Act,\t and
\nthe expenditure that may have to be incurred in constituting
\nand  running them, it can hardly be said that their  number,
\nstructure  and Organisation militate in any way against\t the
\nconcept\t of democracy and the principle of  self-governance.
\nSection\t 11-F (1) by laying down for non-hilly areas a\tnorm
\nof  a village panchayat for every 1000 population as far  as
\npracticable  and  for hilly areas, for\tevery  5  kilometres
\nradiusdistance,\t has in fact tried to observe the  principle
\nof self-governance as closely as possible.\n<\/p>\n
35.  The  first\t premise of the High Court’s  reasoning\t is,
\ntherefore,  faulty  and it has led it to  build\t an  edifice
\nwhich  is equally defective.  It is for this reason that  we
\narc  unable  to\t appreciate the\t portions  of  the  impugned
\njudgment  dealing with the sentiments, feelings,  chauvinism
\nand will of the people [pages 16-201; holding that power  to
\nspecify\t villages  vests with the people and  not  with\t the
\nState  Government and that the villages cannot simply  be  a
\nrevenue village [pages 21 to 25]; holding that the  Governor
\nis  obliged  to specify a village giving due regard  to\t the
\nwishes of the people [pages 26-27]; holding that  provisions
\nof  the Act referring to establishment of Gram Sabha  for  a
\ngroup of villages are ultra vires, and beyond the  intention
\nof the Constitution [pages 3233]; that status of Gram  Sabha
\nhas been compromised and belittled in the Act itself  [pages
\n37-381;\t holding that the Act in explaining  the  expression
\n‘gram  sabha’ offends the Constitution and negates the\tcon-
\ncept  of local self-government [page 40]; and  stating\tthat
\nSection 11-F gives rise to misunderstanding as it has  scope
\nfor  overlapping and duplication in notifying and  declaring
\nareas  comprising  a  village  or  group  of  villages\tinto
\npanchayat area [pages-59].\n<\/p>\n
36.  As pointed out above, Article 243 [g]
\n270<\/span>
\nof  the\t Constitution  defines village to  mean\t “a  village
\nspecified by the Governor to be\t   village  and\t includes  a
\ngroup of villages so specified”.  In other words,  according
\nto  this definition, any existing village or a group of\t the
\nexisting  villages  may be specified by the  Governor  as  a
\nvillage for the purposes of organising a village  panchayat.
\nThe  definition\t begs the question as to what is  a  village
\nwhich the Governor can specify as a village for the purposes
\nof constituting the “village panchayat”.  It is not disputed
\nthat almost all villages in the State have been recorded  in
\nthe  revenue records of the respective district,%  in  which
\nthey are situate.  No material has been placed on record  to
\nshow  that villages have been recorded as such in any  other
\nrecord.\t  There\t may be some villages  and  new\t settlements
\nwhich  are  not so recorded.  There is,\t therefore,  nothing
\nwrong  if  the Governor specifies the  revenue\tvillages  as
\nvillages and in addition also those villages and settlements
\nwhich are not so recorded in the revenue records as villages
\nfor  the  purpose of constituting village  panchayats.\t The
\n“revenue  village”  is, therefore, a  documented  ready-made
\nconcept\t of village and the Governor while acting under\t Ar-
\nticle 243 [g] for specifying the village may adopt the\tsame
\nas  village.  No restriction has been placed by Article\t 243
\n[g]  on the Governor for accepting the revenue village as  a
\nvillage for the purposes of constituting village  panchayat.
\nIn  fact,  the\tGovernor  has been  empowered  by  the\tsaid
\nconstitutional provision to declare even a group of villages
\nas a village.  If this is so, we are unable to appreciate as
\nto why the definition of village in Section 2 [t] will\tfall
\nfoul  of the provisions of Article 243 [g].  Section  2\t [t]
\nnot only speaks of villages recorded in the revenue  records
\nas such but also includes in the definition, any area  which
\nthe State Government may by general or special order declare
\nto be a village for the purposes of the Act.  The concept of
\nvillage is not foreign either to the Constitution or to\t the
\nState  legislation.  Apart from the U.P. Land  Revenue\tAct,
\nthe concept of village finds place in other State enactments
\nsuch  as  U.P. Village and Road Police Act,  1873  and\tU.P.
\nVillage Sanitation Act, 1892, U.P. Village Courts Act, 1892,
\nU.P. Village Panchayats Act, 1920 which was replaced by\t the
\nunamended U.P. Panchayat Raj Act, 1947, U.P. District Boards
\nAct, 1922, U.P. Local Rates Act, 1914 which latter two\tActs
\nwere  replaced\tby  the\t U.P.  Kshettra\t Samities  and\tZila
\nParishads  Adhiniyam,  1961.   If, therefore,  there  is  no
\nrestriction  placed by the Constitution on the\tGovernor  in
\naccepting  any\tinhabited  rural are as\t a  village,  it  is
\ndifficult  to  appreciate how the Act is  violative  of\t the
\nConstitution  when  the State Government declares  any\tarea
\nincluding a revenue village as a village.  In any case,\t the
\nCourt  cannot substitute its concept of village for that  of
\nthe State Government.\n<\/p>\n
37.  As regards the objection of the High Court that whereas
\nArticle\t 243  [g]  requires  the  Governor  to\tspecify\t the
\nvillage, the Act gives this power to the State Government to
\ndo so, the High Court has failed to notice the provisions of
\nthe  Constitution which equate the Governor with  the  State
\nGovernment  in exercise of his functions except where he  is
\nby or under the Constitution required to exercise the  func-
\ntions  in his discretion.  In this connection, we may  refer
\nto  the provisions of Article 163 of the Constitution  which
\nstate  that there shall be a Council of Ministers  with\t the
\nChief Minister at the head to aid and advise the Governor in
\nthe exercise of his
\n271<\/span>
\nfunctions except when they are to be exercised by him  under
\nthe Constitution in his discretion.  It is also not disputed
\nthat when a Minister takes action, according to the rules of
\nbusiness, it is both in substance  and in form the action of
\nthe Governor. Under the Constitution, therefore, while exercising
\nthe  non-discretionary\tfunctions, the Governor\t cannot\t act
\nwithout\t the aid and advice of the Council o Ministers.\t  To
\ndo  so\twill cut at the very root of the cabinet  system  of
\nGovernment  we\thave adopted.  In this\tconnection,  we\t may
\nrefer  to  the decision of this Court in  Samsher  Singh  v.
\nState  of Punjab [(1974) 2 SCC 831] where  the\tConstitution
\nBench  of seven learned Judges has held that  the  executive
\npower  of the State is vested in the Governor under  Article
\n154 [1] of the Constitution.  The expression ‘State’  occurs
\nin  Article  154  [1] to bring\tout  the  federal  principle
\nembodied  in  the  Constitution.  Any action  taken  in\t the
\nexercise  o the executive power of the State vested  in\t the
\nGovernor under Article 154 [1] is taken by the Government of
\nthe  State  in the name of the Governor as  will  appear  in
\nArticle\t 166  [1].  There arc two  significant\tfeatures  in
\nregard\tto  the executive action taken in the  name  of\t the
\nGovernor.   First, Article 300 states, among  other  things,
\nthat  the  Governor may sue or be sued in the  name  of\t the
\nState.\t Second, Article 361 states that proceedings may  be
\nbrought against the Government of the State but not  against
\nthe  Governor.\t The reason is that the\t Governor  does\t not
\nexercise the executive functions individually or personally.
\nExecutive  action taken in the name of the Governor  is\t the
\nexecutive action the State.  Paragraph 48 of the said  judg-
\nment explains the position of law in that behalf  succinctly
\nas follows:\n<\/p>\n
\t      “The President as well as the Governor is\t the
\n\t      constitutional or formal head.  The  President
\n\t      as  well as the Governor exercises his  powers
\n\t      and functions conferred on him by or under the
\n\t      Constitution  on\tthe aid and  advice  of\t his
\n\t      Council  of Ministers, save in  spheres  where
\n\t      the  Governor  is\t required by  or  under\t the
\n\t      Constitution to exercise his functions in\t his
\n\t      discretion.     Wherever\t the\tConstitution
\n\t      requires the satisfaction of the President  or
\n\t      the Governor for die exercise by the President
\n\t      or the Governor of any power or function,\t the
\n\t\t\t    satisfaction  required by the  Constitution\t i
\ns
\n\t      not the personal satisfaction of the President
\n\t      or  Governor  but\t the  satisfaction  of\t the
\n\t      President\t or Governor in\t the  constitutional
\n\t      sense  in\t the Cabinet system  of\t Government,
\n\t      that  is,\t satisfaction  of  his\tCouncil\t  of
\n\t      Ministers\t  on  whose  aid  and\tadvice\t the
\n\t      President or the Governor generally  exercises
\n\t      all his powers and functions.  The decision of
\n\t      any  Minister or officer under Rules or  Busi-
\n\t      ness  made under any of these two Articles  77
\n\t      [3]  and\t166  [3]  is  the  decision  of\t the
\n\t      President or the Governor respectively.  These
\n\t      articles\tdid no provide for  any\t delegation.
\n\t      Therefore the decision of a Minister or office
\n\t      under the Rules of Business is the decision of
\n\t      the President or the Governor.  ”\n<\/p><\/blockquote>\n
38.  Admittedly, the function under Article243\t[g] is\tto
\nbe exercised by the Governoron\tthe aid and advice of  his
\nCouncil\t of Ministers.\tUnder the rules of business made  by
\nthe  Governor under Article 166 [3] of the Constitution,  it
\nis in fact an act of the Minister concerned or of the  Coun-
\ncil of Ministers as the case may be.  When the\tConstitution
\nitself\tthus equates the Governor with the State  Government
\nfor  the purposes of the relevant function, the provision in
\nSection\t 2  [t]\t which\trealistically  gives  the  power  of
\ndeclaring the village to the State Government, cannot be
\n272<\/span>
\nsaid to be inconsistent with or contrary to Article 243 [g].
\nFurther, Section 3 [60] (c) of the General Clauses Act, 1873
\ndefines ‘State Government’ to mean Governor which definition
\nis  in conformity with the provisions of  the  Constitution.
\nWe  are, therefore, unable to appreciate the  conclusion  of
\nthe High Court that Section 2 [t] is ultra vires Article 243
\n[g] of the Constitution.\n<\/p>\n
39.  We\t are also unable to appreciate the reasoning of\t the
\nHigh  Court that under the Act the State  Government  cannot
\ndeclare the village by special or general order as  required
\nby Section 2 [t] because Article 243 [g] of the Constitution
\nrequires  the Governor “to specify the village by  a  public
\nnotification”.\t Admittedly,  the general or  special  order
\nissued\tby the State Government is always published  in\t the
\nofficial  gazette.   In any case, the  order  declaring\t the
\nvillages  for the purposes of Section 2 [t] in\tthe  present
\ncase   was  gazetted.\tThere  is  a  hierarchy\t  of   legal
\ninstruments  such as law, ordinance, order,  bye-law,  rule,
\nregulation  and\t notification.\t It is\trecognised  even  by
\nArticle 13 [3] [a] of the Constitution and Section 3 [29] of
\nthe  General  Clauses  Act, 1897.  All\tthe  orders,  rules,
\nregulations  and  notifications when made or issued  by\t the
\nState  Government  are\tmade or issued in the  name  of\t the
\nGovernor by the functionary of the concerned Ministry  named
\nin  the rules of business as per the provisions\t of  Article
\n166  of the Constitution.  We have already pointed out\tthat
\nin view of the provisions of Article 154 and of Article\t 163
\nread with Article 166 of the Constitution, ‘Governor’  means
\nthe  Government\t of the State and  all\texecutive  functions
\nwhich  arc  exercised  by the Governor except  where  he  is
\nrequired under the Constitution to exercise the functions in
\nhis  discretion, are exercised by him on the aid and  advice
\nof  the\t Council  of  Ministers.  Hence,  whether  it  is  a
\nnotification  issued  by  the Government  or  a\t general  or
\nspecial\t   order   issued   by\t the\tState\t Government,
\nconstitutionally both are the acts, of the Governor.\n<\/p>\n
40.  In the present case, by the notification dated 9th May,
\n1994  issued under Section 96-A of the Act by die  Governor,
\nthe  powers  of\t the State Government under  Section  3\t and
\nSection\t 11-F  of the Act were delegated  to  the  Director,
\nPanchayat Raj, U.P., Lucknow [hereinafter referred to as the
\n`Director’].   Pursuant to this delegation, on\t4th  August,
\n1994  the  Director issued  notification  establishing\tgram
\nsabhas\tunder Section 3 and declaring panchayat areas  under
\nSection 11-F of the Act.  This was a composite\tnotification
\nboth  for establishing gram sabhas and\tdeclaring  panchayat
\nareas.\t It is true that neither in the\t notification  dated
\n9th May, 1994 delegating powers under Sections 3 and 11-F to
\nthe Director nor in the notification dated 4th August,\t1994
\nestablishing grain sabhas and declaring the panchayat areas,
\nthere is a mention either of Section 2 [t] of the Act or  of
\nthe  power delegated to declare the village under  the\tsaid
\nprovision,  However, keeping in mind the scheme of  the\t Act
\nand the provisions of Sections 2 [t], 3 and 11-F, it is clew
\nthat  Section 2 [t] merely defines ‘village’ and  by  itself
\ndoes  not give power to the State Government to declare\t the
\nvillage.   It  states  that village means  “any\t local\tarea
\nrecorded as a village in the revenue records of the district
\nin  which it is situate and includes any am which the  State
\nGovernment  may by general or special order declare to be  a
\nvillage\t for the purposes of the Act.  The said\t section  is
\ntherefore in two parts.\t By the first
\n273<\/span>
\npart, it adopts the villages recorded in the revenue records
\nof  the districts as villages for the purposes of  the\tAct.
\nBy the second part, it accepts as village any area which the
\nState Government may for the purposes of the Act declare  as
\nsuch  village.\tThere is no separate provision giving  power
\nto  the State Government to declare any area as village\t for
\nthe purposes of the Act.  The legislature, probably  rightly
\nthought\t that since the power given to the State  Government
\nby  Section 3 to establish a gram sabha and by Section\t11-F
\nto declare the panchayat area comprise in them the power  to
\ndeclare the village within the meaning of Section 2 [t]\t and
\nparticularly of the second part of it, it was not  necessary
\nto  make  an  independent  provision  to  enable  the  State
\nGovernment  to declare the village for the purposes  of\t the
\nAct.  It cannot be said that this view of the State  Govern-
\nment  is  wrong for it is not possible to establish  a\tgram
\nsabha  or declare the panchayat area unless the village\t for
\nwhich such gram sabha is to be established and its area\t are
\nfirst  determined.  The notification which is issued on\t 4th
\nAugust,\t 1994  further shows that the gram  sabha  which  is
\ninappropriately tided as gram panchayats are established for
\nvillages  within the meaning of Section 2 [t] and they\tcom-
\nprise  the  area either of one revenue village\tor  of\tmore
\nrevenue\t  villages  than  one.\t Although,  therefore,\t the
\ncriticism  by  the  High  Court\t with  regard  to  both\t the
\nnotifications  dated  9th  May, 1994 and  4th  August,\t1994
\ndelegating  the\t power,\t and establishing  gram\t sabhas\t and
\ndeclaring  panchayat areas may be justified in that they  do
\nnot  refer to Section 2 [t] and the latter notification\t has
\ngiven  inappropriate  tides  in columns\t 2  and\t 3  thereof,
\naccording  to  us, for the reasons stated  above,  the\tsaid
\ndefects\t do not in any way affect the legality of  the\tsaid
\nnotifications.\t All that can be said in that connection  is
\nthat  they could have been correctly and adequately  worded.
\nHowever, in construing legal documents, it is not their form
\nbut   their   substance\t  which\t has  to   be\ttaken\tinto
\nconsideration.\t Thus construed we are more than  satisfied,
\nthat  the  two notifications are in  substantial  compliance
\nwith  the provisions of the Act and have to be construed  as
\nsuch.\n<\/p>\n
41.We  also find no merit in the contention that  the  first
\npart  of  Section 2 [t] which defines village  to  mean\t any
\nlocal  area recorded as a village in the revenue records  of
\nthe  district  in which it is situate, goes counter  to\t the
\nprovisions of Article 243 [g] in that it forecloses the\t au-
\nthority\t of  the  Governor to specify the  village  for\t the
\npurposes  of establishing a gram panchayat as  envisaged  by
\nPart  IX  of the Constitution.\tThe  argument  ignores\tthat
\nwhereas\t the  Constitution permits the Governor\t to  specify
\nvillage\t by  a notification, it does not prevent  the  State
\nfrom  enacting\ta  law\tfor the\t purpose.   As\tpointed\t out
\nearlier, the notification issued by the Governor is in\tfact
\na notification issued by the State Government.\tAn enactment
\nof  the\t legislature  is certainly a higher  form  of  legal
\ninstrument  than a notification.  What is further,  the\t Act
\nhas received the assent of the Governor on 22nd April, 1994.
\nHence, there is not only no conflict between the  provisions
\nof  Sections 2 [t] of the Act and those of Article  243\t [S]
\nbut  there is an over-compliance with the provisions of\t the
\nConstitution.\n<\/p>\n
42.The High Court has also held that there is a\t substantial
\ndifference between the definition of ‘gram sabha’ in Article
\n243 [b] of the Constitution and in Section 2 [g] of the\t Act
\nand, therefore the
\n274<\/span>
\nlatter\tdefinition  is\tultra vires the\t provisions  of\t the
\nConstitution.\tFrankly, we have been unable  to  understand
\nthe  reasoning of the High Court in that behalf Article\t 243
\n[b] of the Constitution defines ‘gram sabha’ to mean “a body
\nconsisting  of\tpersons registered in  the  electoral  rolls
\nrelating to a village comprised within the area of panchayat
\nat  the\t village  level” whereas Section 2 [g]\tof  the\t Act
\ndefines\t ‘gram\tsabha’ to means “a  body  established  under
\nSection 3 of the Act consisting of persons registered in the
\nelectoral  rolls  relating to village comprised\t within\t the
\narea  of  a  gram  panchayat”.\tThe  High  Court  has  taken
\nexception to the word ‘established’ in Section 2 [g] of\t the
\nAct.  It must be remembered in this connection that there is
\nno provision in Part IX of the Constitution such as  Section
\n3 of the Act for establishing a gram sabha for a village  or
\na group of villages by such name as may be specified, and to
\nname  the gram sabha in the name of the village\t having\t the
\nlargest population when the gram sabha is established for  a
\ngroup of villages.  One may have quarrel with the use of the
\nexpression ‘established’ in this connection.  For it is true
\nto say that gram sabha is nothing but the electorate of\t the
\nvillage\t or  villages comprised within the area\t of  a\tgram
\npanchayat  and\tin  that  sense\t there\tis  nothing  to\t  be
\nestablished  as far as gram sabha is concerned.\t What is  to
\nbe  established is the panchayat for a particular  area\t and
\nfor the electorate constituted in that area.  The moment the
\npanchayat  area is declared the electorate comprised  in  it
\ngets  automatically constituted into the gram sabha.  It  no
\nlonger\t remains   merely  an  electorate.    Whether\tsuch
\nconstitution  is called establishment is immaterial.   Thes`
\nare  matters of description.  Having followed  a  particular
\npattern,   the\t legislature   has   used   the\t  expression
\n‘established’  also in connection with the gram sabha  along
\nwith the panchayat.  We, however, do not see how the use  of
\nthe  said expression makes any difference to the  intendment
\nof  the\t said  provision and how  the  said  provision\tgoes
\ncounter\t to the provisions of the Constitution.\t Surely,  it
\nis not suggested that the grain sabha that the Act seeks  to
\nestablish  does not consist of the entire electorate in\t the
\npanchayat  area\t or  excludes  some  of\t it.   So  long\t as,
\ntherefore,  the\t definition given in Section 2 [g]  and\t the
\nprovisions of Section 3 of the Act do not in any way detract
\nfrom the provisions of Article 243 [b] or their\t intendment,
\nthey  cannot  be  held ultra vires  the\t provisions  of\t the
\nConstitution.\tWe are, therefore, unable to agree with\t the
\nfinding of the High Court in that respect.\n<\/p>\n
43.  The  High Court has also held that\t the  provisions  of
\nSection\t 3 of the Act which empower the State Government  to
\nestablish  a gram sabha for a group of villages by the\tname
\nof the village having the largest population would result in
\nthe loss of identity of the village or villages with smaller
\npopulation comprised in the gram sabha.\t The High Court\t has
\ncommitted  an obvious error here in that it  has  identified
\nthe  village with the gram sabha and the village  panchayat.
\nWhen villages are united to form a gram sabha and a  village
\npanchayat,  they  do  not lose their name  and\tidentity  as
\nseparate villages.  They come together only for the  purpose
\nof  running the gram panchayat.\t In that process,  they\t may
\nalso stand to gain inasmuch as they may have access to\tmore
\nresources, and the benefit from bigger schemes and  projects
\nand  availability of better infrastructure and equipment  to
\nimplement the projects and schemes.  It is
\n275<\/span>
\nnot,  therefore, possible to agree with the High Court\tthat
\nthe  identity of the smaller villages is lost  because\tthey
\nare grouped together for establishing a common gram sabha or
\ngram panchayat.\n<\/p>\n
44.The\tHigh  Court  has also  declared\t the  provisions  of
\nsection\t 2 [11] read with those of Section 11-F ultra  vires
\nthe provisions of Article 243 [e], because according to\t the
\nHigh Court, the provisions of the said Article require\tthat
\nat first, a territorial area should be carved out to make it
\nthe  panchayat\tarea  and then the population  of  the\tarea
\nshould\tbe  adjusted  so  as  to  ensure  uniform  ratio  of
\nrepresentation\tas required by Article 243-C.  Instead,\t the
\nprovisions  of\tSections  2  [11] and  11-F  carve  out\t the
\npanchayat  area\t on the basis of population  alone  and\t the
\nbasis  for it is conspicuous by its absence in the  Act\t and
\nthis  has created confusion.  The representation of an\tarea
\nhas to be balanced to the ratio of the population in it\t and
\nnot the population to the area.\t Territorial  constituencies
\nare sub-divisions of a panchayat area.\tA densely  populated
\narea will automatically contain more seats while a  sparsely
\npopulated  area will contain lesser seats than\tthe  densely
\npopulated area and hence the provisions of the Act are ultra
\nvires  the  Constitution.  We are unable to  appreciate\t the
\nreasoning  of  the  High Court.\t  Article  243\t[e]  defines
\n‘panchayat  area’ to mean “territorial area of a  panchayat”
\nand Article 243-C speaks about the composition of panchayats
\nand  leaves  it\t to  the legislature  of  a  State  to\tmake
\nprovisions with respect to it.\tThe only conditions that the
\nlatter\tArticle imposes on the composition of  panchayat  is
\nfirstly the ratio between the population of the\t territorial
\narea  of the panchayat at any level and the number of  seats
\nin  the panchayat to be filled by election shall, as far  as
\npracticable,  be the same throughout the  State.   Secondly,
\nthe  seats  in\tthe panchayat have to be  filled  by  direct
\nelection from the territorial constituencies in a  panchayat
\narea  and  for\tthis purpose the panchayat area\t has  to  be
\ndivided\t into  territorial constituencies in such  a  manner
\nthat  the ratio between the population of each\tconstituency
\nand  the  number  of seats allotted to it  have\t as  far  as
\npracticable  to be the same throughout the  panchayat  area.
\nSo   long  as  these  conditions  are  complied\t with,\t the
\ncomposition  of\t the panchayat that may be  evolved  by\t the
\nState  legislature  cannot be faulted.\tWe do  not  see\t any
\nmaterial  before us to suggest that these two  criteria\t are
\nbreached  or arc sought to be breached.\t On the other  hand,
\nsection 11-F of the Act has made three provisions to conform
\nto  the norms laid down by the said Article, viz.,  [i]\t the
\npanchayat area would be such that as far as practicable,  it
\nwill  have a population of 1000 throughout the\tstate;\t[ii]
\nfor the purpose of the declaration of the panchayat area  no
\nrevenue or any hamlet thereof shall be divided and [iii], in
\nthe  hill districts which are sparsely populated and  spread
\nover a vast terrain, an area within a radius of 5 kms.\tfrom
\nthe  centre  of\t the  village  should  be  declared  as\t the
\npanchayat  area though the population comprised in the\tarea
\nmay  be less than 1000.\t When Article 243 [e]  defines,\t the
\n“panchayat area” to mean the territorial area of  panchayat,
\nit does not require that the panchayat should be constituted
\non  the\t basis of the area alone.  The High Court  has\tread
\notherwise in the said definition and has, therefore,  fallen
\nin an obvious error.  When the panchayat area is  determined
\non  the\t basis of population inhabiting a  particular  area,
\nthat  area will also be a panchayat area within the  meaning
\nof the said Article.  The provisions of the
\n276<\/span>
\nAct,  viz., Section 2 [1] read with Section 11-F do no\tmore
\nthan  give  effect to the definition of\t panchayat  area  in
\nArticle\t 243 [e].  When the area includes the whole  of\t the
\nvillage\t or a group of whole villages including the  hamlets
\nthereof, keeping in view the uniform norm of the  population
\nof  1000  as  far as practicable, the  panchayat  area\tgets
\nautomatically  demarcated  by the areas of  the\t village  or
\nvillages comprised therein.\n<\/p>\n
45.It  is  for the Government to decide in what\t manner\t the
\npanchayat  areas  and the constituencies in  each  panchayat
\narea will be delimited.\t It is not for the court to  dictate
\nthe manner in which the same would be done.  So long as\t the
\npanchayat  areas  and the constituencies  are  delimited  in
\nconformity  with  the constitutional provisions\t or  without
\ncommitting  a  breach thereof, the courts  cannot  interfere
\nwith  the  same.   We may, in this connection,\trefer  to  a
\ndecision  of this Court in The Hingir-Rampur Coal  Co,\tLtd.
\nand  Others v. The State of Orissa and Others<\/a> [(1961) 2\t SCR
\n537].\tIn this case, the petitionermine owners,  had  among
\nothers, challenged the method prescribed by the\t legislature
\nfor  recovering\t the  cess under  the  Orissa  Mining  Areas
\nDevelopment  Fund  Act, 1952 on the ground that it  was\t un-
\nconstitutional.\t  The  majority of the Bench held  that\t the
\nmethod is a matter of convenience and, though relevant,\t has
\nto  be tested in the light of other relevant  circumstances.
\nIt  is not permissible to challenge the vires of  a  statute
\nsolely\ton  the\t ground\t that the  method  adopted  for\t the
\nrecovery of the impost can and generally is adopted in levy-
\ning a duty of excise.\n<\/p>\n
46.What\t is more objectionable in the approach of  the\tHigh
\nCourt  is that although clause (a) of Article 243-0  of\t the
\nConstitution enacts a bar on the interference by the  courts
\nin  electoral  matters\tincluding  the\tquestioning  of\t the
\nvalidity  of  any law relating to the  delimitation  of\t the
\nconstituencies\t or   the  allotment  of   seats   to\tsuch
\nconstituencies\tmade or purported to be made  under  Article
\n243-K and the election to any panchayat, the High Court\t has
\ngone  into the question of the validity of the\tdelimitation
\nof  the\t constituencies and also the allotment of  seats  to
\nthem.\tWe may, in this connection, refer to a\tdecision  of
\nthis  Court in Meghraj Kothari v. Delimitation Commission  &
\nOrs.<\/a>  [(1967) 1 SCR 400].  In that case, a  notification  of
\nthe Delimitation Commission whereby a city which had been  a
\ngeneral\t constituency  was  notified  as  reserved  for\t the
\nScheduled  Castes.  This was challenged on the\tground\tthat
\nthe petitioner had a right to be a candidate for  Parliament
\nfrom the said constituency which had been taken away.\tThis
\nCourt held that the impugned notification was a law relating
\nto  the delimitation of the constituencies or the  allotment
\nof  seats to such constituencies made under Article  327  of
\nthe Constitution, and that an examination of sections 8\t and
\n9 of the Delimitation Commission Act showed that the matters
\ntherein\t dealt with were not subject to the scrutiny of\t any
\ncourt  of  law.\t  There was a very good reason\tfor  such  a
\nprovision because if the orders made under sections 8 and  9
\nwere  not to be treated as final, the result would  be\tthat
\nany  voter,  if\t he so wished, could  hold  up\tan  election
\nindefinitely   by  questioning\tthe  delimitation   of\t the
\nconstituencies from court to court.  Although an order under
\nSection\t 8  or\t9 of the  Delimitation\tCommission  Act\t and
\npublished under Section 10 [1] of that Act is not part of an
\nAct of Parliament, its effect is the same.  Section
\n277<\/span>
\n10  [4] of that Act puts such an order in the same  position
\nas  a law made by the Parliament itself which could only  be
\nmade  by it under Article 327.\tIf we read  Articles  243-C,
\n243-K and 243-0 in place o Article 327 and sections 2  [kk],
\n11-F  and 12-BB of the Act in place of Sections 8 and  9  of
\nthe Delimitation Act, 1950, it will be obvious that  neither
\nthe  delimitation  of  the panchayat area nor  of  the\tcon-
\nstituencies in the said areas and the allotments of seats to
\nthe  constituencies could have been challenged or the  Court
\ncould  have entertained such challenge except on the  ground
\nthat before the delimitation, no objections were invited and
\nno  hearing was given.\tEven this challenge could  not\thave
\nbeen  entertained  after the notification  for\tholding\t the
\nelections  was issued.\tThe High Court not only\t entertained
\nthe  challenge\tbut  has also gone into the  merits  of\t the
\nalleged grievances although the challenge was made after the
\nnotification  for  the election was issued on  31st  August,
\n1994.\n<\/p>\n
47.While  supporting  the judgment of the  High\t Court,\t the
\nrespondents  raised some additional contentions.  The  first
\ncontention  was\t that  it was not competent  for  the  State
\nGovernment  under  Section 96-A of the Act to  delegate\t its
\npower to the Director, the delegation being in contravention
\nof  the provisions of Article 243 [g] of  the  Constitution.
\nWe  have  pointed out earlier that under  the  Constitution,
\nGovernor  means\t the  State  Government.   Article  154\t [1]
\nenables the Governor to exercise the executive power of\t the
\nState either directly or through officers subordinate to him
\nin  accordance\twith the Constitution.\tHence by  virtue  of
\nArticle\t 163,  the State Government can exercise  the  power
\nthrough its officers.  Neither Article 243 [g] nor any other
\nprovision  in  Part  IX of  the\t Constitution  prevents\t the
\nGovernor   and,\t  therefore,  the  State   Government\tfrom
\ndelegating  its\t power\tmentioned in the said  Part  to\t any
\nsubordinate officer.  The Act makes a specific provision  by
\nSection 96A thereof for the State Government to delegate all
\nor  any\t of  its  powers under the Act\tto  any\t officer  or
\nauthority  subordinate to it subject to such conditions\t and
\nrestrictions  as  it  may deem fit  to\timpose.\t  The  State
\nGovernment  by a notification issued on 9th May, 1994  under
\nSection 96-A delegated its powers under Sections 3 and\t11-F
\nof  the\t Act to the Director.  We have already\tpointed\t out
\nthat  the power delegated under Sections 3 and 11-F  of\t the
\nAct  would impliedly include the power to declare  “village”
\nunder Section 2 [t] of the Act although the said section  is
\nnot mentioned in the notification specifically.\t Hence we do
\nnot see any substance in this contention either.\n<\/p>\n
48.A part of the aforesaid contention was that the  Director
\nby his Circular dated 12th May, 1994 had delegated the func-
\ntion  of  delimiting  the panchayat areas  to  the  District
\nMagistrates  of\t various districts which he could  not\thave
\ndone  since Section 96-A does not permit  sub-delegation  of
\nthe  powers  given by the State Government.  We\t are  afraid
\nthat this contention results from the incorrect appreciation
\nof the contents of the said Circular.  By the said Circular,
\nthe  Director had only asked the District Magistrates to  do
\nthe  ministerial  work of submitting the proposals  for\t re-
\norganisation of grain panchayats according to the guidelines
\ngiven in the Circular which were in terms of the  provisions
\nof the Act.  Those proposals were to be finally processed by
\ndie   Director\thimself\t and  that  is\twhat  the   Director
\nultimately did as
\n 278<\/span>
\nhe  himself  took  the final decision  with  regard  to\t the
\nreorganisation\tof the existing gram panchayats\t constituted
\nunder  the unamended Act and delimited the panchayat  areas.
\nIn the circumstances, there is no merit in the contention.\n<\/p>\n
49.   The  second  contention  raised  on  behalf   of\t the
\nrespondents was that the delimitation of the panchayat areas
\nand   gram   sabhas  was  done\t without   giving   adequate
\nopportunities  of  being heard to the people  in  the  areas
\nconcerned.  The lists of gram panchayats were published from
\n20th  to  26th August, 1994 and objections  were  heard\t and
\ndisposed  of  on 27th and 28th August, 1994  and  the  final
\nlists of the panchayat areas and gram sabhas were  published
\non the 31 st August, 1994.  While it was conceded on  behalf
\nof  the State Government that the proposals  for  delimiting
\nthe  panchayat areas were published and finalised as  above,
\nit  was pointed out on their behalf that this was done\tbona
\nfide  to  complete  the elections on time  and\twithout\t any
\nulterior  motive,  since  the State  Government\t was  racing
\nagainst time to meet the deadline set by the Centre to\tcon-
\nstitute the new panchayats.  However, during the hearing  of
\nthe  writ  petitions  before  the  High\t Court,\t the   State
\nGovernment had in its counter-affidavit voluntarily  offered
\nto  remove  the said grievances and  invite  the  objections
\nafresh and finalise the delimitation of the panchayat areas.
\nHowever,  no order was passed on the said offer by the\tHigh
\nCourt.\t Subsequently,\tthe  State Government  on  it,;\t own
\ncancelled  the notification of election dated  31st  August,
\n1994  to meet the said grievances of the  writ\tpetitioners,
\ni.e.,  the  respondents\t herein.  However, in  view  of\t the
\nletter\tdated 12th November, 1994 received from the  Centre,
\nto  which we have already made a reference,  threatening  to
\nstop  the  release of funds, the State Government  was\tcom-
\npelled\tto renotify the elections on 26th November, 1994  in
\npursuance  of which the election process was to commence  on
\n3rd December, 1994.  In the meanwhile, on 2nd December, 1994
\nthe impugned judgment was delivered by the High Court.\n<\/p>\n
50.  Before us, again, in order to prove its bonafides,\t the
\nState Government voluntarily offered to hear the respondents
\nwith  regard  to their grievances and for  that\t purpose  to
\ncancel\tthe  notification  dated  26th\tNovember,  1994\t and
\nreschedule  the election process without prejudice to  their
\ncontentions  in the appeal.  By our interim order dated\t 9th
\nFebruary, 1995, we permitted the State Government to  cancel
\nits  notification  dated 26th November, 1994,  to  hear\t the
\nrespondents  with  regard to their said\t grievances  and  to
\nreschedule   the  election  process.   That  order  of\t 9th
\nFebruary, 1995 is reproduced below:\n<\/p>\n
\t      “Pending the decision, we direct as follows:
\n\t      The  Governor  may  adopt\t the   Notifications
\n\t      issued by the Director of Panchayat Raj  under
\n\t      Section 3 read with Section 11-F of the  Uttar
\n\t      Pradesh Panchayat Raj Act, 1947 [Act]  between
\n\t      2nd and 5th August, 1994 as his own  proposals
\n\t      for  the\tpurpose of specifying  villages\t and
\n\t      constituting  Gram Sabha and  Panchayat  areas
\n\t      under the Act.  The Governor may thereafter or
\n\t      simultaneously  issue a fresh notice  inviting
\n\t      objections to the said proposals. He will give
\n\t      at  least\t 10  days’ clear  time\tfor  lodging
\n\t      objections.  He may also nominate officers  to
\n\t      hear   the   said\t  objections.\t After\t the
\n\t      objections are disposed of final\tNotification
\n\t      or   Notifications  will\tbe  issued  by\t the
\n\t      Governor.\n<\/p><\/blockquote>\n
\t      279<\/span><\/p>\n
\t      The   notice  inviting  objections   must\t  be
\n\t      prominently displayed at least in the  offices
\n\t      of   all\t the  Block   Development   Officers
\n\t      throughout  the  period fixed for\t filing\t the
\n\t      objections.   In addition, wide  publicity  to
\n\t      such notice should be given on T.V., Radio and
\n\t      in  Newspapers having wide circulation in\t the
\n\t      areas concerned.\n<\/p><\/blockquote>\n
\t      It would not be necessary to give oral hearing
\n\t      to  the objector unless the officer  concerned
\n\t      considers it necessary to do so.\n<\/p><\/blockquote>\n
\t      After the final Notification\/s is\/are  issued,
\n\t      the  State Election Commissioner\tmay  proceed
\n\t      with the conduct of the elections.  ”\n<\/p><\/blockquote>\n
51.We  understand that the grievances of the people  in\t the
\nareas  have since been heard and the process of election  is
\nunderway according to the revised schedule.\n<\/p>\n
52.The\tabove  order was passed as  stated  earlier  without
\nprejudice  to the contentions of the State  Government\tthat
\nthe  notifications  issued by the Director under  Section  3
\nread  with  Section  11-F of the Act  between  2nd  and\t 5th
\nAugust,\t 1994 were valid.  We have already held\t that  since
\nthe  Governor  means the State Government,  the\t Legislature
\ncould empower the State Government to delegate all or any of
\nits  powers  under  the\t Act to\t any  officer  or  authority
\nsubordinate to it.  This is what the legislature has done by
\nenacting  Section 96A and the State Government in  pursuance
\nof the provisions of the said Section, delegated its  powers
\nto  the Director.  We have held that both the  provision  of
\nSection 96A and the delegation made by the State  Government
\nto  the Director under the said provision is valid.   Hence,
\nthe  notifications  in question issued by the  Director\t are
\nvalid.\t The adoption by the Governor, of the  notifications
\nissued by the Director pursuant to our interim order of\t 9th
\nFebruary, 1995 has, therefore, to be deemed to be by way  of
\nabundant precaution, pending the decision on the contentions
\nraised\ton  behalf of the respondents.\tThe actions  of\t the
\nGovernor  pursuant  to our interim order, therefore,  in  no
\naway reflect adversely on the validity of the  notifications
\nissued by the Director.\n<\/p>\n
53.We must also make it clear that we had passed the interim
\norder,\tas stated earlier, pending the decision and  without
\nprejudice  to the contentions of the State  Government\tthat
\nthe election process once started could not be set at naught
\nby raising objections on the ground that the delimitation of
\nthe panchayat areas was defective.  We have pointed out that
\nthe original delimitation of the panchayat areas having been
\nmade much prior to the election notification of 31st August,
\n1994,\tthe  respondent-writ  petitioners  could  not\thave
\nchallenged  the\t same after the said  notification  and\t the
\nCourt could not have entertained the challenge.\t There\twas,
\ntherefore,  no invalidity in the action taken by  the  State
\nGovernment  by\tits  notification of 31st  August,  1994  to
\ncommence  the election process.\t We are, in  these  proceed-
\nings,  referring  to the lacuna in the steps  taken  by\t the
\nState Government to finalise the panchayat areas only with a
\nview  to  point\t out that it was  obligatory  on  the  State
\nGovernment to hear the objections before the panchayat areas
\nwere finalised.\t The ratio of the decisions of this Court in
\nVisakhapatnam  Municipality  V. Kandregula Nukaraju  &\tOrs.<\/a>
\n[(1976) 1 SCR 545], S-L.  Kapoor v. Jagmohan & Ors.<\/a>  [(1980)
\n3 SCC 379], Baldev Singh & Ors. v. State of Himachal Pradesh
\n& Ors.<\/a> [(1987) 2 SCC 510], Sundarjas Kanyalal
\n280<\/span>
\nBhatija\t &  Ors.  v. Collector, Thane,\tMaharashtra  &\tOrs.<\/a>
\n[(1989) 3 SCC 396], and Atlas Cycle Industries Ltd. v. State
\nof  Haryana & Ors.<\/a> [(1993) Supp. 2 SCC 278] requires that  a
\nreasonable  opportunity\t for  raising  the  objections\t and
\nhearing\t them  ought to be given in such matters  since\t the
\nchange\tin  the areas of the local bodies results  in  civil
\nconsequences.  It was not disputed before us that the action
\nof bringing more villages than one under one gram  panchayat
\nwhen they were earlier under separate gram panchayats,\tdoes
\ninvolve\t  civil\t  consequences.\t   However,   as   held\t  in
\nVisakhapatnam Municipality, S.L. Kapoor, Baldev Singh, S. L.
\nBhatija and Atkas Cycles cases, in matters which are  urgent
\neven a post-decisional hearing is a sufficient compliance of
\nthe  principle\tof  natural  justice,  viz.,  audi   alteram
\npattern.   It  is in view of this position in law  that\t the
\nState  Government had offered to hear the grievances of\t the
\nwrit petitioners before the High Court and before us.\n<\/p>\n
54.We are, therefore, more than satisfied that there were no
\nmala fide intentions on the part of the State Government  in
\ngiving the short time for submitting the objections and\t for
\nhearing\t and  disposing them of.  We may, however,  make  it
\nclew that although, as pointed out earlier, the challenge to
\nthe delimitation of the panchayat areas on the said  grounds
\ncould  not  have  been made in the present  case  after\t the
\nelection  notification\twas  issued,  the  State  Government
\nshould bear it in mind that if and when the next  regrouping
\nof  the villages and redetermination of the panchayat  areas
\nis undertaken, the authorities will have to give  sufficient
\nopportunity to the people of the areas concerned for raising
\nthe  objections.   This\t is  with a  view  to  remove  their
\ngrievances,  if\t any,  with  regard  to\t the   difficulties,
\ninconveniences\tand  hardships,\t likely\t neglect  of   their
\ninterests,  domination\tof  certain  sections  and   forces,
\nremoteness  of\tthe seat of administration, want  of  proper
\ntransport and communication facilities etc.  The opportunity
\nwill also provide an occasion for the people to come forward
\nwith  suggestions  for better and more viable,\tcompact\t and
\ncohesive   regrouping\tof  the\t  villages   for   efficient
\nadministration and economic development.  The objections are
\nnot to be invited to enable the people to exercise the\tsort
\nof a right of self-determination which is sought to be spelt
\nout  by the High Court.\t The final decision with  regard  to
\nthe  delimitation  of  the panchayat  ,\t after\thearing\t the
\nobjections and suggestions, will, of course, be that of\t the
\nState Government acting through the Director.\n<\/p>\n
55.The\tlast contention of the respondents was that the\t Act
\nmakes provision for the nyaya panchayats whereas the amended
\nprovisions   of\t  the  Constitution  do\t  not\tdirect\t the
\nOrganisation  of such panchayats and, therefore, the Act  is
\nultra vires the Constitution.  The contention is only to  be
\nstated\tto  be\trejected.   Admittedly\tthe  basis  of\t the
\norganisation  of  the  nyaya panchayats\t under\tthe  Act  is
\ndifferent  from\t the basis of the Organisation of  the\tgram
\npanchayats  and the functions of the two also  differ.\t The
\nnyaya  panchayats  arc in addition to the  gram\t panchayats.
\nThe  Constitution  does not prohibit  the  establishment  of
\nnyaya  panchayats.  On the other hand, the  Organisation  of
\nthe  nyaya panchayats will be in promotion of the  directive
\nprinciples contained in Article 39A of the Constitution.  It
\nis therefore, difficult to appreciate this contention.\n<\/p>\n
 56. As pointed out above, the decision
\n281<\/span>
\nof  the\t High Court suffers from errors and has\t to  be\t set
\naside.\t The  appeals,\ttherefore, succeed  and\t are  hereby
\nallowed\t and the impugned decision of the High Court is\t set
\naside with costs throughout.\n<\/p>\n
283<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P. & Ors.Etc vs Pradhan Sangh Kshettra Samiti & … on 24 March, 1995 Equivalent citations: 1995 AIR 1512, 1995 SCC Supl. (2) 305 Author: P Sawant Bench: Sawant, P.B. PETITIONER: STATE OF U.P. & ORS.ETC. Vs. RESPONDENT: PRADHAN SANGH KSHETTRA SAMITI & ORS. ETC. DATE OF JUDGMENT24\/03\/1995 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-57056","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P. & Ors.Etc vs Pradhan Sangh Kshettra Samiti & ... on 24 March, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-ors-etc-vs-pradhan-sangh-kshettra-samiti-on-24-march-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P. & Ors.Etc vs Pradhan Sangh Kshettra Samiti & ... on 24 March, 1995 - 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