1994 Supreme(Guj) 195

Gujarat High Court
Judgename :C.K.THAKKER
MOTI PANCHI NAGAR PANCHAYAT - Appellant
Versus
STATE - Respondent
S.C.A. 13651 of 1993
Decided On : 07/25/1994

Headnote:Constitution (Seventy-Third) Amendment Act, 1992 - Art. 243E(1) - Gujarat Panchayat Acts, 1993 - Sec. 13(1) - Gujarat Panchayats Act, 1961 (Now repealed) - Sec. 17(2) - Extension of term of panchayat beyond five years claimed under Section 17(2) of the Old and Repealed Act - Express and clear provision laying 5 years duration for Panchayats laid down in Art. 243E(1) and Sec. 13(1) of the New Act - Held, no relief under repealed Act can be granted - Extension of term beyond 5 years clearly prohibited in the Constitution as well as the new Act of 1993.

       Interpretation of Statute - Constitutional Amendment - Intention of legislature - Duration of Panchayat - Fixed as 5 years and no longer - No extension can be claimed.

       The intention of the legislature is manifest and is clearly reflected in sub-sec. (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. 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. Art. 243E(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 243E(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 243E(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 Art. 243E(1) of the Constitution. Such interpretation, in my judgment, cannot be accepted by a Court of law.

       [Paras 15 & 16]

       Constitution of India, 1950 - Art. 226 - Writ of mandamus - No relief which is contrary to the constitutional provision and the latest law can be granted - Relief claim under old repealed law not maintainable - Panchayat - Term - Fixed as 5 years - Term cannot be extended under Art. 226.

       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 phraseology by using the 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 243E(1) of the Constitution. No such direction in my opinion, can be issued by this court. 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 Art. 243-E of the Constitution. This court cannot be oblivious of the constitutional amendment and legislative mandate reflected in Art. 243-E(1) of the Constitution and Section 13(1) of the new Act.

       [Paras 19 & 20]

       Administrative Law - Malafide - Allegation of - Must be adequately substantiated - Mere bold statement will not help the petitioner - In the present case appointment of Administrator by Govt. alleged as malafide - Allegation without substance thus failed.

       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. 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.

       [Para 25]

       Gujarat Panchayats Act, 1993 - Secs. 278 read with 279 - Notification issued thereunder - Appointment of Administrator - Validity - Impugned Notification issued after expiry of term of Panchayats - No provision for extension of term - Held, the Notification is valid.

       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 Art. 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.

       [Para 24]

       Constitution of India, 1950 - Art. 14 - Equality clause - Cannot be invoked to countenance and permit violation of law - Argument that term of some District Panchayats have been extended - Held, no such proof furnished - Further, term even if extended is in violation of the constitutional provisions of Art. 243E(1) and Sec. 13(2) of the Gujarat Panchayat Act, 1993 - Art. 14 cannot be invoked to claim extension of term of other panchayats.

       In no case, power of extension has been exercised by the State Government under Section 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. 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.

       [Para 27]