Moti Panchi Nagar Panchayat vs State of Gujarat and Others

C.K. Thakker, J.—Rule. Mr. N.D. Nanavati, learned Government Pleader appears for the respondents and waives service of rule. In the

facts and circumstances of the case, all the matters are taken up for final hearing.

In all these petitions, common questions of fact and law arise for determination of this Court and it is, therefore, apporpriate to dispose of all the

petitions by a common judgment.

To appreciate the controversy in question, few relevant facts of the main petition (Special Civil Application No. 13651 of 1993) may now be

stated.

This petition is filed by Sutrapada Gram Panchayat through its Sarpanch. In the said petition, the petitioner panchayat has challenged the legality

and validity of the notification dated November 2, 1993 (Annexure-A) issued by the State Government in exercise of powers u/s 303-B of the

Gujarat Panchayats Act, 1961 (hereinafter referred to as ""the old Act"") by which an administrator is sought to be appointed for exercising powers

and discharging duties of the panchayat for a period of six months. Challenge is also made to quash and set aside a similar notification dated April

15, 1994 (Annexure-I) issued by the State Government in exercise of powers u/s 278 read with Section 279 of the Gujarat Panchayats Act, 1993

(hereinafter referred to as ""the new Act""). A prayer is made to issue a writ of Mandamus directing the State Government to grant extension of term

of the petitioner panchayat u/s 17(2) of the old Act for a period of one year. Interim relief is also prayed against operation and implementation of

the impugned notification dated November 2, 1993.

It is the case of the petitioner that it is a panchayat duly constituted under the old Act. In accordance with the provisions of the Act, an election was

held in 1988 and the first meeting of the panchayat was convened on November 29, 1988. u/s 17(1), the term of the panchayat was to begin from

the first meeting and it was for five years from that day. Thus, the petitioner panchayat was to continue upto November 28, 1993. Even though

fresh election was required to be held, no action was taken by the respondents. On the contrary, the State Government decided to appoint an

Administrator in place of elected body and, hence, a petition was filed in this Court being Special Civil Application No. 11374 of 1993. Initially,

notice was issued but after hearing the other side, the petition was dismissed on October 30, 1993. Letters Patent Appeal No. 456 of 1993 was

filed by the panchayat wherein a statement was made by the learned Additional Advocate General on behalf of the State Government that the

Administrator would not be appointed till the term of panchayat was over. Regarding extention u/s 17(2), the Division Bench observed that it was

not the subject-matter of petition. The Court, however, observed that it would be open to the panchayat to raise such question in future. Nothing

more required to be done in the matter. Accordingly L.P.A. stood disposed of. It is the case of the petitioner that because of political pressure of

one Jasubhai Dhanabhai Barad, Minister for Water Resources, the State Government had shown total inaction in discharging its statutory duty in

the matter of extention of term of panchayat u/s 17(2). The petitioner, therefore, preferred Special Civil Application No. 13253 of 1993 and

sought direction against the State Goverment to grant extension by invoking powers u/s 17(2). At the time of hearing, the Assistant Government

Pleader sought time. On the next day, however, a statement was made that the State Government had already taken decision to appoint an

Administrator and nothing could be done in the matter. The learned single Judge in these circumstances dismissed the petition. Letters Patent

Appeal No. 483 of 1993 was filed and after hearing the parties, the Division Bench permitted the appellant to withdraw the original petition.

Special Civil Application No. 13253 of 1993, thus, stood dismissed as withdrawn. L.P.A. was also dismissed. Appointment of Administrator as

envisaged by notification dated November 2, 1993 stood deferred upto December 6, 1993 and elected body was allowed to continue in office till

that date. Operative part of the order reads as under:

(a) The Special Civil Application No. 13253 of 1993 out of which this Letters Patent Appeal arises stands dismissed as withdrawn. As a result,

the reasonings and observations given, and made by the learned single Judge in his order in Special Civil Application No. 13253 of 1993 do not

survive.

(b) Consequently, this Letters Patent Appeal is dismissed.

(c) The appointment of an Administrator as envisaged in the Notification dated 2-12-1993 in so far as the first petitioner panchayat is concerned

shall stand deferred upto 6-12-1993 and the elected body of the first petitioner panchayat shall continue to be in office upto that date but shall not

take any policy decision except for prosecuting any litigation. This indulgence which we have shown is purely gratis and any further indulgence that

the petitioners may seek on their preferring a fresh process shall be dealt with by the Court independently and on merits.

(d) This Letters Patent Appeal is disposed of in the above terms.

(e) No costs.

The petitioner then preferred the present petition on December 3, 1993. On December 6, 1993, this Court (Coram: K.R. Vyas, J.) passed the

following order:

Notice to the Respondents returnable on 14-12-1993. The appointment of Administrator as envisaged in the notification dated 2-11-1993 is

stayed till then. The elected body of the first petitioner shall continue to be in office till then, and shall not take any policy decision except for

prosecuting litigation. Direct Service permitted.

Ad-interim relief granted on December 6, 1993 came to be extended from time to time.

A number of other panchayats have also filed similar petitions. They have also made grievance against the action of appointment of

Administrators and have prayed for extension of the term of panchayats.

I have heard M/s. Jayant Patel, H.M. Mehta, P.M. Thakkar, H.L. Patel, R.K. Mishra, H.J. Nanavati, S.V. Parmar, P.B. Majmudar, Yogesh

Lakhani, Tushar Mehta, J.V. Japee, C.H. Vora, H.P. Raval, Y.S. Mankad, Deepak Section Shah, Sunil Patel, Ravi Tripathi, M.R. Shah, A.M.

Mehta, Amar Mithani, P.N. Bavisi and D.M. Thakkar for petitioners and Mr. N.D. Nanavati, learned Government Pleader for respondent

authorities.

Learned Counsel for the petitioners raised the following contentions:

(i) Notification issued u/s 303-B of the old Act is arbitrary, unreasonable and ultra vires the Gujarat Panchayats Act, 1961 as well as ArticleS 14

and 19 of the Constitution of India.

(ii) A writ of Mandamus should be issued to the respondent authorities directing them to exercise power u/s 17(2) of the old Act by extending the

term of petitioner panchayats for a period of one year inasmuch as the power conferred on the State Government under that provision is not

merely in the nature of ""privilege"" or ""concession"", but a ""power coupled with duty"".

(iii) In the alternative, the respondent authorities be directed to decide the question of extension of term of panchayats in accordance with the

provisions of Section 17(2) of the old Act in the light of the law laid down by the Division Bench of this Court in Abdulgani Abdulbhai Kureshi and

Another Vs. State of Gujarat and Another, .

(iv) Provisions of Part IX of the Constitution of India as inserted by the Constitution (Seventy-Third) Amendment Act, 1992 do not apply to

petitioner panchayats.

(v) Provisions of the Gujarat Panchayats Act, 1993 are also not applicable in the instant cases and, hence, orders passed on April 15, 1994 u/s

278 read with Section 279 are illegal, unlawful and ultra vires.

(vi) Grounds for issuance of notification for appointment of administrators are irrelevant and extraneous. Exercise of power is, therefore, bad in

law.

(vii) The action is mala fide sad malicious. The party in power has abused its position and in colourable exercise of power, notifications have been

issued.

(viii) Impugned action is discriminatory and violative of Article 14 of the Constitution of India inasmuch as term of District panchayats has been

extended. Though petitioners are similarly situated, the power has not been exercised in their cases.

(ix) It is always better to have the administration run at the grass-root by elected representatives than by Administrators. When popular body is

available and enabling provisions are present, it is not open to the State Government to appoint foreign elements.

(x) Administrators are not from local soil. They do not have sufficient knowledge, experience and equipment as to local conditions and customs.

Hence, they are unable to look after welfare and well-being of village people properly. Again, in many cases, one Administrator is ordered to look

after many villages which is a difficult task. It will jeopardise administration. Various welfare schemes and public projects undertaken by local

bodies will also suffer.

Mr. Nanavati, on the other hand, resisted the petitions. He raised the following contentions:

(i) All petitions have become infructuous inasmuch as notification issued u/s 303B of the old Act lived its life upto April 20, 1994.

(ii) Notification/order issued on April 15, 1994 u/s 278 read with Section 279 of the new Act cannot be challenged in present petitions. It is totally

new and altogether different cause of action.

(iii) Article 243-E(1) of the Constitution of India as inserted by the Constitution (Seventy-Third) Amendment Act, 1992 prescribes duration of

every panchayat for five years ""and no longer"".

(iv) Section 13(1) of the new Act also limits term of panchayats. It is expressed in positive as well as in negative words and fixes the period of five

years ""and no longer"".

(v) Even under the old Act, duration of panchayats was five years. All panchayats have completed statutory duration of five years and, hence they

have no right to remain in power.

(vi) Validity or vires of Article 243-E(1) of the Constitution of India or of Sections 13(1), 278 or 279 of the new Act has not been challenged. (vii)

Principle laid down in A.A. Qureshi''s case cannot help the petitioners as admittedly, that case was decided prior to the Constitution (Seventy-

Third) Amendment Act, 1992.

(viii) While exercising powers under Article 226 of the Constitution and considering the legality or otherwise of the action of the State Government,

the Court will keep in mind underlying object behind the Constitution (Seventy-Third) Amendment Act, 1992 as also, Section 13(1) of the new

Act.

(ix) If this Court directs the State Government to extend the term of panchayats u/s 17(2) of the old Act, such direction will be inconsistent with

Section 13(1) of the new Act as also contrary to Article 243-E(1) of the Constitution.

(x) Similar provision in the Bombay Provincial Municipal Corporations Act, 1949 as amended by the Gujarat Second Amendment Act, 1993 has

been held constitutional by the Division Bench of this Court.

For all these reasons, according to Mr. Nanavati, no case has been made out by the petitioners and all the petitions are liable to be dismissed.

Before I deal with the contentions of the parties, it is necessary to refer to some of the provisions of the Gujarat Panchayats Act, 1961 (""old

Act""), of the Gujarat Panchayats Act, 1993 (""new Act"") as also of Part IX of the Constitution of India as inserted by the Constitution (Seventy-

Third) Amendment Act, 1992.

The term ""panchayat"" was defined in Section 2(21) of the old Act as a gram panchayat, nagar panchayat, taluka panchayat or district

panchayat. Thus, under the old Act, there was four tiers of panchayats. Chapter II made provisions for establishment of different tiers of

panchayats. Section 17 prescribes the term of panchayat. It is material for the purpose of controversy raised in these petitions and requires to be

quoted in-extenso:

(1) The term of a panchayat as constituted at its first meeting shall, save as otherwise provided in this Act, be five years from the date of such

meeting.

(2) The State Government may by order in writing and for reasons recorded therein extend the said term for a period not exceeding in the

aggregate one year.

(3) On the expiry of the term under Sub-section (1) or Sub-section (2), as the case may be, the panchayat shall be reconstituted.

(4) Sub-sections (1) and (2) shall apply mutatis mutandis to a panchayat so reconstituted.

Chapter III dealt with election, appointment and co-option of members of the panchayat as also election disputes. Chapter IV enacted law relating

to presiding officers and members of different panchayats. Chapter XV described control of the State Government over panchayats. Section 297

provided for dissolution and supersession of panchayats in certain cases. Section 303-A empowered the State Government to appoint officers to

carry on administration of panchayats in certain circumstances, whereas Section 303-B enabled the State Government to appoint officers to

exercise powers and to discharge duties of panchayats in such cases. Section 303-A and 303-B read as under:

303A. (1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, if at any time, the State Government is

satisfied that a situation exists by reason of dissensions among the members of a panchayat or disturbances in the whole or any part of the State

Government whereby-

(i) the administration of the affairs of a panchayat cannot be carried on in accordance with the provision of this Act or the rules or bye-laws made

thereunder, or

(ii) it is not possible or expedient to hold elections for the reconstitution of a panchayat on the expiry of its term, the State Government may, by

notification in the Official Gazette, make a declaration to that effect.

(2) A notification issued under Sub-section (1) in relation to any panchayat shall remain in force for such period, not exceeding six months, as may

be specified therein:

Provided that if the State Government is of the opinion that it is necessary so to do, it may by order and for reasons to be mentioned therein,

extend, from time to time, the period so specified; so however, that the notification shall not in any case remain in force for more than one year in

the aggregate.

(3) On the issue of a notification under Sub-section (1) in relation to any panchayat-

(a) all the members of such panchayat shall vacate their office as such members;

(b) all the powers and duties of such panchayat shall, during the period when such notification is in force, be exercised and performed by such

officer of the State Government as it may, by order, specify in that behalf.

(4) The State Government shall, before the expiry of the period specified in the notification issued under Sub-section (1), or extended under the

proviso to Sub-section (2), as the case may be, take steps for the purpose of reconstitutiong the panchayat in the manner provided in this Act.

303B. (1) Notwithstanding anything contained in this Act or the rules or bye-laws made thereunder, if in respect of any panchayat, the State

Government is satisfied, at any time before or after the date on which it is or has become liable to be reconstituted on account of the expiry of its

term or otherwise that it is not possible to hold elections for the reconstitution of that panchayat, by reason of any of the matters connected with the

holding of election of members set out in Sections 20 and 21 or elsewhere in this Act or any rules made thereunder not having been completed and

not being likely to be completed within a reasonable period, the State Government may, by notification in the Official Gazette, make a declaration

to that effect.

(2)A notification issued under Sub-section (1) in relation to any panchayat shall remain in force for such period, not exceeding six month, as may

be specified therein:

Provided that if the State Government is of the opinion that it is necessary so to do, it may, by order and for reason to be mentioned therein,

extend, from time to time the period so specified; so, however, that the notification shall not in any case remain in force for more than one year in

the aggregate.

(3) On the issue of a notification under Sub-section (1) in relation to any panchayat, with effect from such date (not being earlier than the date on

which the panchayat is or has become liable to be reconstituted) as the State Government may, by order, specify and so long as that notification,

remains in force, all the powers and duties of the panchayat shall be exercised and performed by such officer of the State Government as may be

specified in the said order.

(4) The State Government shall, before the expiry of the period specified in the notification issued under Sub-section (1) or extended under the

proviso to Sub-section (2), as the case may be, take steps for the purpose of reconstitutiong the panchayat in the manner provided in this Act.

Section 2(14) of the new Act defines ""panchayat"" as village panchayat, taluka panchayat or district panchayat. In other words, under the new

Act, there are three tiers of panchayats instead of four tiers under the old Act. Chapter II makes provisions for establishment of three tiers of

panchayats. Section 13 enacts law relating to duration of panchayats and is equally material. Hence, it also requires to be quoted:

(1) Every panchayat, unless sooner dissolved under this Act shall continue for five years from the date appointed for its first meeting and no

longer.

(2) An election to constitute a panchayat shall be completed-

(a) before the expiry of its duration specified in Sub-section (1);

(b) before the expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved panchayat would have continued is less than six months, it shall not be

necessary to hold any election under this sub-section for constitutiong the panchayat for such period.

(3) A panchayat constituted upon the dissolution of a panchayat before the expiration of its duration shall continue only for the remainder of the

period for which the dissolved panchayat would have continued under Sub-section (1) and had it not been so dissolved.

Chapter III deals with election of members of panchayats as also election disputes. Chapter IV enacts law relating to presiding officers and

members of different panchayats. Chapter XIV provides for control of the State Government over panchayats.

Section 253 provides for dissolution and supersession of panchayats in certain cases. Section 257 enables the State Government to appoint

officers if elections cannot be held on account of natural calamity. Section 276 speaks of repeal of old Act of 1961 and consequences ensue on

such repeal. Section 278 is in the nature of ""removal of difficulty"" clause which reads as under:

If any difficulty arises in giving effect to the provisions of this Act or any schedule the State Government may, as occasion requires, by order

do anything which appears to it be necessary for the purpose of removing the difficulty.

Section 279 makes transitional provisions and it reads thus:

Where the term of a panchayat constituted under the Gujarat Panchayats Act, 1961 expires withing one year from the commencement of the

Constitution (Seventy-Third) Amendment Act, 1992 or a panchayat constituted under the said Act is dissolved then until a panchayat is duly

constituted under this Act for the first time and its first meeting is held, its powers, functions and duties shall be performed by such person as the

State may by order in writing, appoint.

Part IX (The panchayats) came to be inserted in the Constitution of India by the Constitution (Seventy-Third) Amendment Act, 1992. Clause

(d) of Article 243 defines ""panchayat"", as an institution (by whatever name called) of a self-Government constituted under Article 243B for the

rural areas. Article 243-B enacts that there shall be constituted body in every State panchayats at the village, intermediate and district levels in

accordance with the provisions of Part IX. Article 243C provides for composition of panchayats whereas Article 243K makes provision for

election of panchayats. Article 243E enacts law relating to duration of panchayats which is material and it reads thus:

243-E. Duration of Panchayats Act.- (1) Every panchayats, unless sooner dissolved under any law for the time being in force, shall continue for

five years from the date appointed for its first meeting and no longer.

(2) No amendment of any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.

(3) An election to constitute a panchayat shall be completed-

(a) before the expirty of its duration specified in Clause (1);

(b) before the expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved panchayat would have continued is less than six months it shall not be

necessary to hold may election under this clause for constitutiong the panchayat.

(4) A panchayat constituted upon the dissolution of a panchayat before the expiration of its duration shall continue only for the remainder of the

period for which the dissolved panchayat would have continued under Clause (1) had it not been so dissolved.

Article 243-N provides for continuance of existing laws relating to Panchayats and it reads as under:

243-N. Continuance of existing laws and Panchayats.- Notwithstanding anything in this Part, any provision of any law relating to Panchayats in

force in a State immediately before the commencement of the Constitution (Seventy-Third) Amendment Act, 1992, which is inconsistent with the

provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other comptent authority or until

expiration of one year from such commencement, whichever is earlier:

Provided that all the panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner

dissolved by a resolution passed to that effect by the Legislative Assembly of that State or in the case of a State having a Legislative Council, by

each House of the Legislature of that State.

It is necessary to clarify at this stage that none of the petitioners has challenged the validity of Part IX of the Constitution of India as inserted by

the Constitution (Seventy-Third) Amendment Act, 1992; or any provision of the Gujarat Panchayats Act, 1993. I am, therefore, called upon to

decide the legality or otherwise of all actions in the light of the relevant provisions of the old Act, of the new Act and of the Constitution of India as

inserted by the Constitution (Seventy-Third) Amendment Act, 1992.

It is not disputed that the new Act of 1993 has come into force. Section 1 came into force on August 5, 1993 whereas other provisions have

been made operative with effect from April 15, 1994. Sub-section (2) of Section 276 of the new Act specifically enacts that with effect on, and

from the appointed day, Gujarat Panchayats Act, 1961 (old Act) shall stand repealed and certain consequences ensue which have been

enumerated in various clauses of Sub-section (2) of Section 276. ""Appointed day"" is defined in Clause (a) of Sub-section (1) of Section 276 as

such date as the State Government may by notification in the Official Gazette appoint"". As seen above, Section 13 of the new Act fixed the term

of every panchayat as five years from the date appointed for its first meeting and no longer. In my judgment, therefore, it is now not open to the

petitioner panchayats to place reliance on Sub-section (2) of the Section 17 of the old Act which empowers the State Government by an order in

writing and for the reasons to be recorded therein to extend term of panchayat for a period not exceeding in the aggregate one year. In the new

Act, a provision analogous to one u/s 17(2) of the old Act, does not find place. Hence, even the Government has no power to extend term of any

panchayat. Such action would be without authority of law and must be held to be unlawful and ultra vires.

The matter, however, can be looked from a different angle. Apart from the fact that there is no provision in the new Act, similar to one found in

Section 17(2) of the old Act, Section 13 in no uncertain terms provides that every panchayat unless sooner dissolved under the Act shall continue

for five years from the date appointed for its first meeting ""and no longer"". Thus under the new Act, the legislature has made it explicitly clear that

every panchayat unless dissolved under the provisions of the Act - (i) shall continue for five years from the date of its first meeting; (ii) and no

longer.

In my opinion, the intention of the legislature is manifest and is clearly reflected in Sub-section (1) of Section 13. In view of unambiguous language

used in Section 13(1), no panchayat can claim extension after completion of five years from the date appointed for its first meeting. For this reason,

also the petitioners cannot claim relief regarding extension of the term of panchayats.

There is still one more important aspect of the matter. As per settled law, constitutional provisions must be regarded as sovereign and supreme

and all statutes - primary as well as delegated -, must be read in confirmity with the Constitution. Article 243-E (1) of the Constitution as inserted

by the Constitution (Seventy-Third) Amendment Act, 1992, enjoins that every panchayat unless sooner dissolved under any law for the time being

in force shall continue for five years from the date appointed for its first meeting ""and no longer"". Obviously, therefore, even if there exists a

provision in any statute empowering or enabling the State Government to extend the term of panchayat after five years it would be inconsistent with

Article 243-E(1) of the Constitution. In my opinion, Section 13(1) of the new Act has been enacted so as to make it in conformity with the

amendment in the Constitution by Article 243-E(1). After the Constitution (Seventy - Third) Amendment Act, 1992, there cannot be a provision

similar to one present in Section 17(2) of the old Act. If the relief prayed by the petitioners is granted, it would run counter to the legislative

mandate expressed in Section 13(1) of the new Act. It would also be repugnant to with Article 243-E(1) of the Constitution. Such interpretation,

in my judgment, cannot be accepted by a Court of law.

I am also of the view that the ratio laid down by the Division Bench of this Court in Abdul Gani Abdul Qureshi''s case (supra) cannot help the

petitioners. In that case, Mandamus was sought for extension of term of Municipal Corporation in the light of Section 6 of the Bombay Provincial

Municipal Corporations Act, 1949. Section 6 as then stood read as under:

6(1) councillors elected at general elections under this Act shall, subject to the provisions thereof, hold office for a term of five years which may be

extended by the State Government by notification in the Official Gazette to a term not exceeding in the aggregate six years for reasons which shall

be stated in the notification:

Provided that before such notification is published the State Government shall invite and consider objections, if any, from persons entitled to vote at

an election under this Act.

(2) The term of office of such councillors shall be deemed to commence on the date of the first meeting called by the Commissioner under the

provisions of the rules.

(3) The term of office of the outgoing councillors shall be deemed to extend to and expire with the day immediately preceding the date on which an

Administrator is appointed under Clause (a) of Section 7A.

Considering the said provision as also various decisions of the Hon""ble Supreme Court and of this Court, the Division Bench held that the power

conferred on the State Government of extending the term of Corporations was a ""power coupled with duty"" and it was obligatory on the part of

the State Government to extend the term of Municipal Corporations. The Bench also observed that if the Government was of the opinion that the

term should not be extended, it was required to record reasons. The Court further held that if the power was not exercised and the term was not

extended, the Court could issue a writ of Mandamus directing the Government to exercise powers in consonance with law.

Mr. Nanavati, learned Government Pleader vehemently contended that the Division Bench had virtually rewritten Section 6. According to him,

the State Government was obliged to record reasons if it was of the view that the term was required to be extended and not vice versa. In other

words, if the State Government was of the opinion that instead of holding fresh elections, old body should be continued for a period not exceeding

one year, it was incumbent on the part of the State Government to record reasons. The Division Bench, however, held that if the term was not

extended by the State Government, recording of reasons was necessary. Thus, the Court while interpreting a legislative provision has in substance

and in reality amended the law. According to me, it is not necessary to dwelve into the wider question raised by Mr. Nanavati, in view of the fact

that because of the Constitution (Seventy-Third) Amendment Act, 1992, and passing of the new Act of 1993, position of law is now entirely

changed. In my considered opinion, the decision in Abdul Gani Abdul Qureshi''s case (supra), does not in any manner, assist the petitioners in the

light of insertion of Part IX of the Constitution as also because of Section 13(1) of the new Act.

The matter can still be looked at from another angle. It cannot be gainsaid that this Court, while exercising powers under Article 226 of the

Constitution, cannot ignore the law as on today. It is clear that on coming into operation of the new Act of 1993, the old Act of 1961 stood

repealed. There is no provision for extension of the term of panchayat in the new Act. On the contrary, there is an embargo and total prohibition

against such extension and the legislature has also used negative pharseology by using die expression ''no longer''. The mandate of the Constitution

is equally emphatic that every panchayat shall continue for five years ""and no longer"". If this Court, under Article 226 of the Constitution directs the

Government to extend the term of panchayats after the expiry of five years, such a direction would run counter to Section 13(1) of the new Act. It

would also be inconsistent with Article 243-E(1) of the Constitution. No such direction in my opinion, can be issued by this Court.

It was, however, contended that the provisions of Part IX of the Constitution and the new Act would apply only to those panchayats

constituted under the new Act and not to existing panchayats. Reliance was also placed on Clause (2) of Article 243-E of the Constitution which

states that ""No amendment of any law for the time being in force shall have the effect of causing dissolution of a panchayat at any level, which is

functioning immediately before such amendment, till the expiration of its duration specified in Clause (1).

An ingenious argument was advanced by the petitioners that all the petitioner panchayats were constituted under the old Act. No doubt, duration

of such panchayats was five years but, then, there was a provision for extension under Sub-section (2) of Section 17. Similar provision was found

in Section 6 of the Corporation Act which was interpreted by the Division Bench in Abdul Gani Abdul Qureshi''s case (supra) as ""power coupled

with duty"". Now if the act of extension of the term of panchayats is to be construed as a ""power coupled with duty"" and if it is saved by the

Constitution (Seventy-Third) Amendment Act, 1992, it must be implemented. It was, therefore, incumbent on the part of the State Government to

extend the term of all panchayats. I am afraid, I cannot uphold the above argument for more than one reason. Firstly, even under the old Act, the

term of panchayats was five years from the date of the first meeting. It is an admitted fact that all the petitioners have completed the said term.

Secondly, the old Act has been repealed on coming into force of die new Act. Thirdly under the new Act, the term of every panchayat is five years

from the date of the first meeting ''and no longer''. Fourthly, Article 243-E(1) of the Constitution (Seventy - Third) Amendment Act, 1992 clearly

prescribes duration of every panchayat as five years ''and no longer''. Fifthly, neither Section 17(2) of the old Act nor Section 6 of the General

Clauses Act, 1897 can take the case of the petitioners any further as ""different intention appears"" [Clause (m) of subsection (2) of Section 276 of

the new Act] and the ""context requires otherwise"" [Article 243 of the Constitution]. Sixthly, the ratio laid down in Abdul Gani Abdul Qureshi''s

case (supra) cannot support the petitioners as that case was decided prior to the Constitution (Seventy-Third) Amendment Act, 1992. Finally, it is

well settled that the High Court would consider legal position when it makes an order in exercise of the powers under Article 226 of the

Constitution. In Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , a primary health centre was inaugurated at village A

subject to certain conditions. Since those conditions were not satisfied, it was resolved by the Samithi to shift at village B. Government set aside the

said notification without giving notice to the Samithi. Subsequently, however, the Government reviewed the said order without affording

opportunity of hearing to the affected persons. The High Court held that the order passed by the Government on review was bad but did not

interfere with the said order. The matter was carried to the Supreme Court. Confirming the order of the High Court, the Supreme Court observed:

If the High Court had quashed the said order, it would have restored an illegal order and it would have given health centre to a village contrary to

the valid resolutions passed by the panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary

discretionary power in the Constitution.

(Emphasis supplied).

In the instant cases also, if this Court issues a writ of Mandamus directing the Government to extend term of the petitioner panchayats for a period

of one year, that action would be contrary to the provisions of Section 13(1) of the new Act as well as Clause (1) of Article 243-E of the

Constitution. As per G. Venkateshwar Rao''s case (supra), it would be an illegal order and the High Court in exercise of extraordinary and

discretionary powers would not give such direction. In my opinion, while exercising powers under Article 226 of the Constitution, this Court

cannot be oblivious of the constiutional amendment and legislative mandate reflected in Article 243-E(1) of the Constitution and Section 13(1) of

the new Act.

So far as the notification issued u/s 303(B) of the old Act is concerned, Mr. Nanavati is right in submitting that it has lived its life and has come

to an end with passing of the new Act. The question of legality of the said notification is more or less a question of academic nature. It is, therefore,

not necessary to express any opinion regarding validity or otherwise of the notification issued by the Government under that provision.

It was, however, argued that it is always better to have the administration run by elected representatives of the people rather than by appointing

beaurocrats. According to me, however, the question is whether the State Government has power to appoint an Administrator. If such power is

present, this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution cannot opine as to whether adoption of such

course would be proper or advisable. A similar question was raised in Special Civil Application No. 8204 of 1993 and allied matters decided on

October 18, 19, 20, 1993. Speaking for the Division Bench G.T. Nanavati, Actg. C.J. (as he then was) observed that a provision for appointment

of Administrator after the duration of Municipality could not be regarded as inconsistent with the basic feature of the self-Government. This Court,

while disposing of the petition, granted certificate of fitness to approach the Supreme Court under ArticleS 132 and 133 of the Constitution.

Before the Hon""ble Supreme Court, interim relief was prayed by the petitioners but the same was not granted by the Court and the following order

was passed:

This is an appeal by certificate. There is a prayer for interlocutory directions and injunction which if granted would have the effect of members of

the erstwhile Municipal Bodies to continue till the Municipalities are duly reconstituted after fresh elections. We decline to grant this interlocutory

relief in view of proviso to Article 243-ZF of the Constitution.

(Emphasis supplied)

(It may be clarified here that the provisions of Article 243-ZF are similar to the provisions of Article 243N).

.

Thus, even though pursuant to the certificate granted by this Court, appeals were entertained by the Supreme Court, it did not think fit to grant

interim relief in the light of Part IX-A of the Constitution as inserted by the Constitution (Seventy-Fourth) Amendment Act, 1992. In my opinion,

the same principle applies to panchayats also. When all the panchayats have completed their duration of five years, and as on to-day, new Act of

1993 has come into force which is again in consonance with the provisions of Article 243-E(1) of the Constitution as amended by the Constitution

(Seventy-Third) Amendment Act, 1992 which provides that every panchayat shall continue for five years ""and to longer"", it is not open to the

petitioners either to rely on Section 17(2) of the old Act which stood repealed with coming into force of the new Act of 1993 or on the decision of

the Division Bench of this Court in Abdul Gani Abdul Qureshi''s case (supra). Therefore, even this contention has no merit and it requires to be

rejected.

It was then contended that in any case, the notification dt. April 15, 1994 issued u/s 278 read with Section 279 of the new Act appointing an

Administrator is de hors the Act and is unlawful and ultra vires. It was also argued that an Administrator can be appointed only u/s 257 of the new

Act if the State Government is satisfied that it is not possible to hold elections before the expiry of duration for reconstitution of the panchayat on

account of natural calamity. Section 278 merely enables the State Government to do something for the purpose of removing any difficulty if such

difficulty arises in giving effect to the provisions of the Act. Under the guise of ""removal of difficulty"" clause, the State Government cannot take an

action not warranted by the legislature. In other words, such clause should not become Henry VIII Clause permitting modification by the Executive

in the parent Act. Likewise, Section 279 which is a transitional provision also does not empower the State Government to appoint an

Administrator if the case is not covered within the four corners of the said provision. It was submitted that term of a number of panchayats

constituted under the old Act expired after one year from the commencement of the Constitution (Seventy-Third) Amendment Act, 1992. Those

panchayats obviously did not fall within the mischief of Section 279 and no Administrators, therefore, could be appointed for such panchayats.

As stated above, in view of the fact that the term of all panchayats is over and since there is clear embargo against the extension of the term of

panchayat in Section 13(1) of the new Act and in Article 243-E(1) of the Constitution, the action of appointment of Administrator cannot be said

to be illegal or contrary to law and the contention has no force. The notification, dt. April 15, 1994, cannot, therefore, be said to be ultra vires the

Act or the Constitution.

It was also contended that the decision to appoint Administrator is mala fide inasmuch as it was taken at the instance of political pressure of

one Jasubhai Dhanabhai Barad, Minister for Water Resources. Said Jasubhai Barad is not joined as party respondent. No adequate materials have

been placed on record by the petitioners except a bald statement. It is settled law that full and sufficient particulars of mala fide must be furnished

by the petitioners in the petition. Such person also must be joined as party respondent eo nomine so as to enable him to deny such allegations.

State of Bihar and Another Vs. P.P. Sharma, IAS and Another, . As held by the Supreme Court in Gulam Mustafa and Others Vs. The State of

Maharashtra and Others, , the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations

demands proof of a high degree of credibility. It is the last refuge of a losing litigant (Emphasis supplied). This contention also, in the light of the

above decisions cannot be upheld.

I also do not see any substance in the argument of the petitioners that the impugned notification has been issued for irrelevant or extraneous

considerations. As observed earlier, after the statutory term of the panchayat is over, the members thereof have no right to hold office. As held by

the Division Bench, thereafter there is no bar on the State Government in appointing an Administrator and if such action is taken the petitioners

cannot make any grievance.

Finally, it was contended that the impugned action is discriminatory in nature and, hence, violative of Article 14 of the Constitution. It was

asserted that term of District Panchayats has been extended by the State Government by invoking Section 17(2) of the old Act. Though cases of

the petitioners are similar to those of District Panchayats, they have not been shown similar treatment and equals have been treated unequally. I am

afraid even this contention also cannot be accepted. Firstly, no such contention appears to have been specifically taken. No particulars have been

furnished by the petitioners as to in which cases such extension has been granted. The Court has, thus, no material to come to any conclusion one

way or the other. Mr. Nanavati, learned Government Pleader emphatically stated that in no case, power of extension has been exercised by the

State Government u/s 17(2) of the Act after the term of panchayat was over. Moreover, if in case of District Panchayats, in violation of statutory

and constitutional provisions, extension is granted by the State Government, the petitioners cannot by relying upon Article 14 of the Constitution

insist that they also must be granted extension by committing breach of provisions of law. I have negatived such an argument in Ramkrishna Bus

Transport and Others Vs. State of Gujarat and Others, , Special Civil Application No. 2866 of 1989 and allied matters, decided on June 30,

1994 by observing that the Court cannot countenance such an argument and permit violation of law by invoking equality clause enshrined in Article

14 of the Constitution. That is not the sweep of Article 14. This contention is also misconceived and is rejected.

I am, therefore, of the opinion that none of grounds put forward by the petitioners has any merit and, hence, they must be negatived. For all

these reasons, I am clearly of the opinion that no case is made out by the petitioners in their favour and all the petitions are required to be

dismissed. Accordingly, all the petitions are dismissed. Rule is discharged. Ad-interim relief requires to be vacated and is hereby vacated. In the

facts and circumstances of the case, however, there is no order as to costs.

The learned Counsel for the petitioners requests that adinterim relief may be continued for some time so as to enable them to approach higher

forum. In my opinion, the prayer cannot be granted in view of the provisions of Section 13(1) of the Gujarat Panchayats Act, 1993 read with

Article 243E(1) of the Constitution, Hence, the prayer is rejected.