STATE OF GUJARAT versus JAMNADAS G. PABRI AND ORS. ETC.

STATE OF GUJARAT

JAMNADAS G. PABRT AND ORS. ETC.

October 3, 1974

(Y. V. CHANDRACHUD AND R. S. SARK.WA, JJ.J

Gll}arat P1111dayat Act (1 of 1961) S. 17 (2) am/ 303 A·-Scop1 of

Jnterprttal/on of statute3--Meanlng of 'by reason of', 'to hold tlectio11s' an« 'expedient'

S~tion 11;(2) of the Gujarat Panchayata Act, 1961, provides that tht normal term of paDC:hayat Is s yean from the date or its first meeting and that the tcm llOuld be extended by the State Government b7 period not exceeding one year i• the aggregate,

The s.yeair term of the Talulca Panchayat! and the Distri61 Panchayats in tll.1 appellant-State were due to eiipire on February 28, 1973 and March 31, 1973 res· pectively. They were extended first upto August 31, 1973 and September 30, 1973 and then upto February 28, 1974 :md January 1974. Widespread disturballlie3 broke out in the State and the Governor promulgated an Ordinance by which the Slab Government was given power to extend the terms of pancbayata for 2 years imtead of 011e. On l"ebrllary 9, 1974, the State Ministry m!igned and the President of India assumed all function,, of the State Government. The terms of the panchayal were extended upt<> 31st March 1974.

The State legislature was dissolved on March IS, 1974 and.Parliament pa!Mtl the ·oujarat Slate Legislature (Delegation of Powers) Act, 1974. Under s. 3 of this Act, the President enacted Gujarat Panchayats (Amendment) Act, 1974 which i•· sened s. 303A in the 1961 Act. On March 31, 1974, the Government iMued notiA-cation under s. 303A, that wh1:reas the State Government la satisfied that situatioa exists by reason of disturbances whereby It iJ not expedient to hold e/ections for the reconstitution of the panchayats, the State government orders that all the powers and duties of taluka panchayats should be exercised by the Taluka Development Officer and or the District paJ!JCbayats by the District Development Officer.

, The respondents who are presidents of panchayats successfulJy challenlJCd tae notification in the High Court, on the basis that the condition precedent to lhe 1x1r· clae of the power under the section was not satisfied.

Allowing the appeal to the Court,

HELD : (1) An analysis of s. 303A(l) shows that before declaration co11lll be made thereunder, two requirements must be rulfilled : (a) existenee of 6ituatio11 by reason of disturbances in the State; and (b) the satisfaction of the State 1o~er•· ment relatable to such situation, that it is not expedient to hold election,, for tho reconstitution of panchayat after the expiry of its term. The first requirement is an objective fact, which, if disputed, must be established objectively as condition precedent to the exercise of the power; and the l!CCond is an opb ion 01 inference drawn from that objective fact. It is matter of !ubjective satisfaction of the government and is not justiciable. Once rea110nabl• nexus between such satisfaction and the facts comtituting the first requirement is shown, the exercise of the power by the government, not being colourable or mofi. vated by ·extraneollll considerations, is not open to judicial review. (33,H-336BJ

(2) If the languago of statute is susceptible of two constructions, the 0111 f11!fils the object i~ to be prefe:rred to the 11lternative which frustratell it (337H] (3) In vfow of the particiilara stated in the Counter-affidavit it is clear that tli1 disturbances in the State condnued throulliout March 1974. Assumina that tho disturbances abated after the dissolution o:t the AS9Clllbly on March 1,, 1974 th•

abnormal situation, which was the direct result of the dhturbances must have cont!· nued to exist throughout March 1974. The section speaks of the existence of si· tuation 'by reason of' disturbances. The expression indicates that the 'disturbances' . and the 'situation' must be proximately connected as cause and effect. It is sufficient if the situation ls the immediate outcome of the disturbances and that it subsist&.

[3360-H)

(4) The phrase 'to bold elections', understood in wide sense, will include all stegs such as delimitation of the constituencies, the compilation of electoral rolls ete which Ille necessary preliminary to the actual conduct of elections, whereas in restricted sense, it would cover only the actual holding of elections. The word 'expedient' baa also several shades of meaning. It could not be contended for the respondenti; that the phrase should be understood in the restricted sense, that is, that power under s. 303A is exercisable on]y after the completion of preparatory stePs preliminary to the holding of an election, and that since that stage bad not yet been reached in tlie present case, ·the power coulll not be exercised. Section 303A bas been designed to enable the Government to get over difficult situation sur-charged with dangerous potentialities and hence the Court must construe the expression therein, in keeping with the context and object of the 'provision, In their widest amplitude, and eschew a!I interpretation which attenuates the power or impain it& efficacy. Tbv Rtatute places no fetter on the discretion of the government in the exercise of tbv power. [338B-E, GJ ·

(S) Further the Court cannot sit in appeal over the opinion of the State Government as to the inexpediency of holding elections. All that the Court could enquire was, whether the condition precedent, which is, an objective facl to the 0 exercise of the power existed. (338E-FJ · .

(6) The respondents could not also contend that the impugned notification is not relatable to the situation existing by reason of the disturbances and that the power was exercised for an extraneous reason, namely, that the terms of the pan-cbayat& were expiring on March 31, 1974, because;

(a) the reference· to the terms of the pancbayats in the impugned notification is .only the recital of feet which coll5tituted another facel of the situation arisinc out of the disturbances; [339B-CJ

(b) the real and dominant reason for the exercise of the power is contained in the 2nd paragraph of the notification namely, the existence of situation by reason of the disturbances; and [339B-C]

(~) the counter-affidavit on behalf of the appellant pleaded that the distur-bances continued also in March 1974 and that it was not expedient in the circums-tances to bold elections and that die effort& made by the government to bold elections were thwarted by the supervention of the disturbances. [339D-EJ

(7) The purpose of s .. 17(2) is to ensure the continuity of the pancbayats, where as the object of s, 30~A is to confer powers regarding dissolution or pan. cbayats in special situations. Therefore, even if the Government bad the power under s. 17(2) to extend the tenru; of the panchayats beyond March 31, 1974, it could not be said in the circumstances of the case that in choosins to act. under s. 303A government acted maliciously. In the counter-affidavit on behalf of the government, it wu stated that one of the demands of the agitators was that the tenm of the panchayats should not be extended fui;:ther, This weighed with the government in deciding that it was no~ polltlc in the then prevailing conditions to extend the terms of the panchayats. Thus the government exercised il!I powers under s. 303A only because of the peculiar situation arising out of the disturbanru. -[339H, 340 D-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366-1367 of 1974.

From the Judgment and Order ciated the 26th June, 1974 of the Gujarat High Co.urt in Spl. Civil Appls. Nos. 420 and 411 of 1974.

N. M. Phadke, M. N. Shroff and J. R,Nanawati, for the Appellants (In both the appeals). ·

[1975] 2 s.c.R.

J, M. Nanawati, P. . .Parekh, Sunanda 11handare and Manju Jaitley, for Respondent No. 1 (In CA No. 1356/74).

. M. C. Bhandare, P. Jl. Parekh, 81.nanda Bhandare and Martju Jaitley, for Respondents Nos. 1 and 9 (in ~A No. 1357/74).

The Judgment of the Court was delivered by

SARKAIUA, J.,-The main question that arises in these two appe.als direct against the common judgment, dated June 26, 1974 of the High Court of Gujarat, is, whether the Notification dated March 31, 19.74 (for short, the impugned notification) issued by the State Ge vernm~nt is invalid on the ground that the condition precedent to the exercise of the power under s. 303A of the Gujarat Panchayats Act, 1961, (for short, the Panchayats Act) is not satisfied.

The Panchayats Act provided for three-tiers of Panchayats They were, in the descending ordel' : District Panchayats, Taluka Panchayats and Gram P,anchayats. The Act provided for indirect election to Taluka Panc)l.ayats and partly indirect and partly direct election to ~he District Panchayats on the basis of Adult franchise Under s. 17 (2) as amended by Gujarat Act, 8 of 1968, the n_ormal term of pan-chayat was jive years from the date of its first meeting. This te!m could be ext¢nded by the State Government by period not exceedmg in aggregate .one year.

The last election to Taluka Panchayats tcok place in February, 1968 and the Panchayats were constituted on February 28, 1968. Their term was due to expire on February 28, 1973. Similarly, the five-year term o( the District Panchayats wa~ due to expire on March 31, 1973. By Resolution dated April 12, 1973, the State Go".Crnment appointed high level Committee headed by Jhinabhai Darji to suggest basic reforms in the Panchayati Raj set-up. On the interim recc.mmen-dation of thl.s Committee the: State Government extended the terms of Taluka Panchayats upto Au.gust' 31, 1973 and those of Distirct Pan-chayats upto September 3,0, 1973. The Jhinabhai Darji Committee submitted its final report on. September 30, 1972. Thereupon, the Gujarat (Amending) Act 9 of 1973 was passed. It came,into force on April 23, .1973. This Amending Act made' far-reaching changes in tile original .(\ct. The indire:ct elections to the Taluka Panchayats were abolished an~ provision was, made for direct elections to all the Pan-chayats. As. it was. not possible {or administrative reasons to hold elections in "Elccordance with the amended Act, the State Government by an order dated June 21, 1973, extended the term of Taluka Pancha-yats and District Panchayats till August 31, 1973 anCI September 30, 1973 respectively.: By another Order, dated October 3, 1973, the terms of both these Panchayats were again extended upto February 28, 1974. Thus the po\ver of the Sta.ti: Government to extend the term of the Taluka Panc'hayats under s. 17(2) of the Act had exhau$ted itself.

Jn the fir~rweek of January, 1974, widespread disturbances broke out in the State of Gujarat.. There was public agitation against the State Govcrbment demandir1g its resignaticn and the dissolution of the Gujarati Assembly.

On.January 26, 1974, the Governor of Gujarat promulgated Ordi-nance 1of1974. It substituted in sub-s. (2) ofs. 17 of the Act the words "two years" for the words "one year". Under the 'amended provision the Government got the power to extend the term of Panchayat by two years in the aggregate beyond its normal term of five years.

As result of the mounting public agitation, the State Ministry tendered its resignation on Febru'ary 9, 1974. On the same date, the President of India by proclamation under Article 366 of the Cc mti-tution assumed all the functions of the State Governn"ent.

By an order dated February 27, 1974, issued under s. 17(2) as amended by Ordinance 1 of 1974, the terms of the Taluka Par:chayats and District Pai:J.chayats. were again extended upto March 31, 1974.

The State Legislature was dissolved on March 16, 1974. Parlia-ment thereafter passed the Gujarat State Legislatu1e (Dele~2.ticn of Powers) Act, ll of 1974 which vested with effect from Match 27, 1974 powers of the State Legislature in the PJesident of India. In exercise of his powers under s, 3 of this Act, the President enacted Gujarat Panchayats (Amendment) Act 8 of 1974 which came into force on March 31, 1974. It inserted s. 303A in the Panchayat Act which provides :

"303A.(1) Notwithstanding anything contained in this · Act or the rules or by-laws made thereunder, if at any time, .the State Government is satisfied that a· situatien · exists b)' re~on of disturban.ces in the whole or any part of the State of Gujarat, whereby-. . (i) * * • •

. (ii). It is not possible or expedient to hold-elections for the re-constitution ofa panchayat on the expiry of its term;

the State Government may, by notification in the Official Garette; make declaration to that' effect.

(2) notification issued under sub-rection(I) in relatic.n 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 thereill', 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 aggre-. gate.

~3) On the issue o~ notification under sub-section (l) in relation to arty panchayat,-. ·

(a) all the ~m~ of such pa!lcltaya:t shall vacate their office as such mcm~ · . .

. . · · (b) all the powers o-4 duties of 111ch panchayat shall, during the period whtD nch notiftcAtion is in force, be

ex-.rcised and p~rform0d by such _offi~r .of the State G:>v~rnm•mt as it may, by order, specify m that behalf.

(4) The State G:>wrnment shall, before the expiry C?f the p~riod sp~cified in the notification issued under sub-section(!) or extend~d under th~ proviso to sub-section (2), as the case miy b~, take steps for the purp:>se of reconstituting the pancha-yat in the manner provided in this Act."

Purp)rting to act under s. 303-A, the G:ivernment issued on March 31, 1974, the impugn~d ne>tification :

"No KP/74-81/PRN (HLC)/4-JHI-Whereas the terms of all Taluka and District Pancliayats in the State of Gujarat except that of the Dangs District Panchayat expire·on 31st March, 1974;

And Whereas the G:rn::rnment of Gujarat is satisfied that situation exists by reason of disturbances in the whole of the State of Gujarat whereby it is not expedient to hold elections for the re1:·)nstitution of any of the taluka and district pancha-yats whose. term expires on the aforesaid date;

Now, therefore. in exercise of the powers conferred by · Sectior. 303A of the Gujarat Panchayats Act 1961 (Guj. VI of 1962), the G:>v<:rnm•mt of Gujarat hereby-

(1) makes declaration that situation exists by reason of <iisturbances in the whole of the State of Gujarat whereby· it is not expedient to hold elections for the reconstitution of any of the taluka and district panchayats whose term expires on 31st March, 1974 on the expiry of their term;

(2) directs that the: declaration made as aforesaid shall remain in force for p~riod ofgjx-m.onths; and

(3) orders that all the powers and duties of each of the taluka and district panchayats whose term expires on 31st March 1974, shall, witl). effect from the expiry.of their term· till this notification is in force, be exercised and performed,-

(i) in relation to taluka over which the taluka pan-chaya.t concerned had authority immediately befort the expiry of its term, by the Taluka Development Officer posted under the taluka panchayat concerned; and

(ii) in r~lation to district over wh;ch the district pan-chayat concerned had authority immediately before the expiry of its term, by the District Development Officer posted under the district panchayat conccrmd.

By order and irt the name of the Governor of Gujarat

R. B. SHUKLA, Secretary to Government."

Two writ petitions und~r Articles 226 of the Constituticn i~re. filed in the High Cou rt< Gujarat to challenge the aforesaid nctificatfon. One of these was filed by the President of Barcda District Panchayat Baroda etc. and the oth r by the President of Jamnagar District Pan-chayat and ors. The petitions were heard by Division Btnch which by common judgment accepted the same hclding that the in.rugned notification "was illegal, invalid and bad in law because the c< r.d1ticn precedent to the exercise of the power under s. 303A viz., holding el~c­tions for the reconstitution of the Panchayats on the expiry ct their terms has not been satisfied". Against that judgment, the Statll ::of Gujarat has preferi:ed these ·appeals on the str,ngth of certificate. granted by the High Court. · · ·

The High Court held· that "election" within the contemplation of section 303A(l) is restricted to the process of the actual ccr.duct of the election, commencing with the issue of the notificatic n calling the election and terininating with the declaraticn of the mult ct the election. In its view the delimitation of constituencies er wards preparation of electoral rolls. and framing of rules for conducting elec: tions, being stages plior tc the election, do not fcrm part of tht: rrccess of holding election. With this narrow construction of the phrase "to hold elections", the High Court approached the problem thus :

"A reading to s. 303-A makes it clear that the two o bjectivo facts are (1) the. factum of disturbances in the. State by reascn of which situation exists· and (2) holding of elections for reconstitution of panchayats. Both these factors arc open to judicial roviow. The satisfaction of the Government with regard. to the existence of situation by reason of the di&tur-E bances or in respect of non~possibility or inexpediency of .holding elections is subjective and not open to judicial review. The holding of elections for the reconstitution of Panchayats is an objective fact. The constitution of the panchayats is not only the objective fact but holding .of election thereto is an also objective matter. The State Government has to establish both these points to justif) invocaticn cf pcwer under s. 303A and to justify the legality of the impugned notification. In the instant case the condition p1ecedent ot hclding elections fc r the reconstitution of the panchayats is not fulfilled. The stage of holding elt:ctions for the 'reconstitution of the panchayats had not reached at the time when the impugned n<ttification was issued. On that date it was not possible to hold elections because preliminary stage~ in connection· with electicns were not cc m-pleted. Constitution of wards, reservation of seats for wcmen, scheduled caste and scheduled tribes and voters' lists were not formed or made or prepared. In absence of all th.ese preliminary matters, the question of holding of elections cannot arise."We are unable to agree with this rcl!iSoning. An analysis of s.303A (1) would show that before declaration refo1red to in that sub-section can be made, two requirements ~ust ·be .fulfilled : (I) existence of situation by reason of disturbanecs in tho whole or any part of tho State ; (2) the satisfaction of tho State Government rclatable to such

situation, that it is 11Dt expedient to hold elections for the reconsti-tution of panchayat on the expiry of its term. The first require-ment is an objective fact and the second is an opinion or inference drawn from that fact. The first requirement, if disputed, must be established objectively as condition precedent to the exercise of the power. The second is matter of subjective satisfaction of the Governmont and is not justiciable. Once reasonable nexus between such satisfaction and the facts constituting the first requirement is shown, the exercise of the power by the Government, not ~ing colourable or motivated by extraneous considerations.is not open to judicial review. Thus the question that could be objectively Gonsidered by the Court in this case was : Did situation arising out of disturbances exist in the State of Gujarat on the date of the impugned notification ?

The fact that there were serious disturbances throughout the State of Gujarat in January and in the first fortnight of March, 1974, has not b~en seriously disputed by the learned Counsel for the res-pondents. From the counter-affidavit filed on behalf of the State, it .,appears that these disturbances continued throughout March, 1974. Shri Satyendra Shah, Joint Secretary to Government of Gujarat has sworn that "disturbances on wide scalo occurred in all parts of the State-both in the urban as well as in the rural areas, resulting in l.oss of hum·ut life and considerable damage to property. This ultimately resultod in the resignation of tho Ministry on the 9th February 1974 and the issuance by the President of India of Proclamation under article 3S6 of the Constitution assuming to himself all the functions of the State Government .......•.. The disturbances continued also in March, 1974."

In further affidavit it is stated that an agitation for dissolution <>fthe Panchayats, whose normal terms of office had expired, continued even in the last days of March, 1974. An instance of Kutch Panchayat which on a.ccount of such agitation, was unable to assemble for the budget meeting at Bhuj has been cited. Even Shri Jamnadas Pabri, one of the writ petitioners, who was the President of that Panchayat, was not able to attend his office, on account of these abnormal co.ndi-:tions in February and March 1974, except for one day.

In view of th~se particulars stated in the counter-affidavit it is -claar that th: disturbance5 in the State of Gujarat continued through-out M1rch 1974, and even. on the date of issue of the impugned noti-'fh:1tion the situation in the State was anything but normal.

Assuming that the disturbances had abated after the dissolution of th~ State Assembly on March 15, 1974, the abnormal situation in th~ State. which was the direct product of the disturbances, continued to eicist throughout March 1974. Sufficient time was therefore. required for the situation to limp back to normalcy. It is to be notod that s. 303A(l), speaks of the existence of situtation "by reason of" disturbance&. The expression "by reason of" indicates that the 'dis-turbances' and the 'situation' must be proximately connected as cause and effect. The 'situation' envisaged by ·this sub-section :th,refore, m 1y not necessarily be coterminous with tho disturbanc:es'.

It is sufficiont if the situation is the immediate outcome .of the distur-bances, and it subsists.. The situation after such massive and violont disturbances would c:Ontinue to bo"disturbod'~ for some time evon after tho abatement or overt eessation of the distl.irbances.

Mr. Phadke, learned Counsel for the appellant-State contends that since the satisfaction of the Government as to the inexpediency of holding elections was not justiciable matter, the giving. of wido or narrpw meaning to tho phrase "to hold elections" in s; 303A wollld not affect the point at iSsue. . The High Court, it is contended, erred in trca~ing the completion of the preliminaries, Sl\Ch as compilation .of electoral rolls and formation . of constituencios, ·virtually as . coq.dition precede11t to. the. exercise of the· power, though the only condition procedcnt laid '1own by tho statute which could . bo tostod by objective-standards was the oxistence of tho situation. created by the disturbances. -·

Mr. Nanawati, learned .Counsel for the respondents (who~ argu- · ments have boen adopted by Mr. BJiandaro, appearing for :respondonts 1 and 9), submitted that the High Court was right in hol<ling that tho protiminaries such as delimitation of constituencies etc. belong to stage. anterior to the conduct of elections and therefore do not fall within the anibit of the phrase "to hold elections". The point pressed into argument, is that. s. 303A presupposed that the election machinery was ready and all the prellininary steps for holding the elections, such as oompilation of. tho voter&' lists and formation of wards etc., had been completed but the process of election had not yet started when disturbances' intorvenod. Since that stago had not yet reached, the power could l)Ot be exercised. ·

It may bo romembcred. that s. 303A is in the nature of an emergency provision. . It was designed to tide over crisis of unprecedented mag-nitude. "Roasons for the Enactment" issued by the Governmont run as follows:-

. ''The oxtended terms of the Taluka and District Panchayata in the State of Gujarat expire on 31st March, 1974. These Pan-cha1ats hav~ been fbiict1oning for moro than one year after the expiry ofthei,r normal tonn offive yoars. However, the recent . disturbances in tho State have cre8led. an atmosphere which is congonial neither to the . c0ntinuanco of these panchayats for f~her Jl!'riod nor for holding f;lections for their reconstitution.· It is; therefore, considered necessary to entrust the administration of, these. panchayats temporarily to officers appointed by .the State Governmont: ..••... The present measure seeks to ..... . . • • • .. empower tho State Government •... for carrying on tho administration of the affairs of panchayats in certain special circumstances .... "---·

Now it is .well-settled that if. the _language of statute is susooptfblo of two constr,uctions, the o~,wlUch fulfils its object is to be preferred to tho alternative which-frustrates it. Thia canon is of ~ilr significanco whilo interpreting an omorf)Ollcy measuro of the ltjnd before

us. In r(:cent English case Cannon Street Ltd. v. Singer & Friedlander Ltd. (I) While considering the uncertain language in statutory instrument made under an Act with the long title "An Act to authorise measures to counte; inflation". Meggary J. refused to put on it construction which would make the countering of inflation "so capri-cious and easily escapable".

In the provision under consideration the phrase "to hold elections" can be understood both in wide and narrow sense. Its wide con-notation will include all steps such as the delimitation of constituencies, the compilation of electoral rolls etc. which are necessary prelimi-nary to the actual conduct of elections. In the restricted sense, this phrase would cover only the actual holding of elections. Again, the word "expedient" used in this provision, has several shades of meaning. In one dictionary sense, "expedient" (adj.) means "apt and suitable to the end in view", "practical and efficient" ; "politic" ; "profitable" ; "advisable'', "fit, proper arid suitable to the circumstances of the ci~e". In another shade, it means device "characterised by mere utility rather than principle, conducive to special advantage rather titan to what is universa.Uy right" (see Webster's New Int~rnational Dictionary).

Sinco s. 303A has been designed to enable the Government to get over difficult situation surcharged with dangerous potentialities, the Court must construe the aforesaid phrases in keeping with the conto11t and object of this provision, in their widest amplitude. Under the provision the Legislature has given to the . Government discretionary power to meet the challe,nge of an extraordinary situation arising out of the disturbances. .The Court thorefore would eschew an interpretation which attenuates that power or impair its efficiency.

Nor would the Cott.tt $it in appeal over the opinion of the State Government as to the "inexpedie11.cy of h0lding elections". The statute has made that mattor the sole preserve of the Government. All that the C0urt could enquire '\'{as, whether the condition precedunt which is an objective fact to ithe exercise of this power, existed. By no stretch of imagination could it be said that the power under s. 303 is ·exercisable only after the completion of preparatory steps prelimi-nary to the holding of an election. The statute places no such fetter on the discrotion of the Government to the exercise of the power. We, therefore, negative tho contentions canva&sed by Mr. Nana-wati.

. Le?.rned Counsel for the respondents next contended that it has been. the positive caso of tho State that the preliminaries to the hold-ing of elections required substantial time and that was why Ordinance 1 of 1974 promulgated on January 25, 1974 h?.d c0nferred p0wer on tho State Government to extend the terms of District and Taluka Panchayats by one year more with effect from March 31, 1974 and February 25, 1974, respectively. With reference to the first preamble of the impugned notification, it is contended, that it shows that tha power

(I) (1974) 2 W. L. R. 545 (Ch. D.)

was exercised not because of any situation arising out of the distur-bances. but for an extraneous reason, namely, that the terms of all Taluka and District Panchayats were expiring on the 31st March 1974. In thi11 viow of the matter, says the Counsel, the impui:necl notHication is not relatable to the situation existing by reason of tits disturbances.

This contention also is devoid of force. Iri the first place, the open-ing paragraph of the impugne~ notificaticn is recital of z. fr.ct Y.hich constituted another fact of the situation arising out of the disturbances. Secondly, the real and dominant reason for the exercise cf the pcwer is contained in the 2nd paragraph of the notification (reproduced earlier in the judgment). The circumstances and reasons which weighed with the Government in issuing the impugned notification hr.Ve been set out in the counter-affidavits of the Joint Secretary, Mr. Sh,-,h. We have referred to the same earlier. We will hcwever like to point out that although it was stated therein that Government. on being so advi-sed, was of the view that after the 31st March 1974, the Gcvcrnment 011. account of the cessation of the operaticn cf Ordinance I cf 1974, would have no power to extend the terms of the Panchayats further, it was pleaded that as "the disturbances contim:cd also in March 197<1, it was felt by the Government that it was not expedient ;n the thell circumstances to hold elections to the Taluka and District Panche:yats.

In para 6c of the counter, the Joint Secretary has explained ho-ir the efforts made by the Government to hold the electic ns were tt,wartcd by the supervention of the disturbances. Avers he :

"I dony that no efforts were at all made to hold elections ef the Taluka Panchayats or the District Panchayats before March 31, 1974. In fact the process of holding elections was initiated as early as in August 1973, whr.n the Development Ccm-missioner called for the proposals for the delimitation cf cc nsti-tuencies from the Collectors. The Development CC'mmissioner had also instructed Collectors to consult tah ka P~.r:d.E.yats and district Panchayats while formulating the proposals cf deli-mitation of the constituencies. An Assistant Develcrment Commissioner visited most of the districts to expedite the fr rnn:-lation of those proposals. In the meantime, the terms of tatuka panchayats and district panchayats w~.s first extended upto 28-2-1974 and then extended upto 31-3-1974 as set out hcre:n above. However, due to widespread disturbances throughout the State of Gujarat, the situation was such that it was not exredi-cnt to hold elections for the reconstitution of any of the talukii and district panchayats."

In the eounter it is also 1tate.d that one of the cfemands of the a!i-tators was that the terms of the panchayats, who had served more thall their normal terms, should not be extended further. That weighed with the Government in deciding that it was liot pC'llitic in th: then p1evailing conditions to extend the terms of tho pa.nchayats which 011 account of the extensions had already been continued fer preiod of 7-Jd2SSSup.CI/7S

about sev,m years. The Joint Secretary made this point in the co11nter by citing .illustration of Baroda Corporation thus :

"The example of Baroda Municipal Corporation where the term of that bod1 was extended for the seventh year and where cJrporators had to resign per pressure was also in the mind of the Gwl}rnment. The Government accordingly decided in the overall interast of the State and the Panchayati Raj not to extend the terms of taluka and district panchayats ."

The averm~nts in Paragraphs 2 and 6C (quoted above) in the co:mter-affidavit: of the Joint s~cretary between themselves furnish comulete answer to the contention advanced on behalf of the Res-pondents.

The further point canvassed by Mr. Nanawati is that even assum-ing there were two powers with the Government in situation where elections could not b} held, in whatever sense the word election is canstrued, resort to more dra~tic and undemocratic provision itself exhibits m'l\ice in law. This argument was advanced before the High Court, also, and was negatived. We also do not find any merit in it.

The Constitutional validity of the provisions of ss. 303A and s. 17(2) has not been assailed before us. As rightly point out by Mr. Phadke, S. 17(2) and 303A operate in separate fields. Their objects &li'O also diff;rent. Whereas the purpose of s. 17(2) is to ensure the continuity of the panchayat:s, the object of s. 303A is to confer powers regarding dissolution of panchayats, in the special situation created by the disturb1nces and to enable the Government to carry on the ad-ministration of the affairs of the panchayats through State officers, pending their reconstitution. It has been repeatedly averred in cate-goric1l term~ in the counters that the Government exerdsed its power under s. 303A in view of the peculiar situation arising out of the distur-bances. Even if the Government had the power undet s. 17(2) to 'xten4 the term~ of the panchayats beyond March 31, 1974, it could not be said in the circumst1nces of the case, that in choosing to act under s. 303A, it had acted maliciously, the operational fields of these two prvvisions being so different and divergent. We would, therefore, overrule this contention, als9.

Thllse, then, are the raasons in support of our Order, announced on 27th s~ptemb~r. 1974, whereby we had allowed these appeals and set aside the judgmr.nt of the High Court, leaving the parties to bear their own costs throughout.

W i hopJ that the G:>vornm1Jnt will ta~ prompt measures to hold the e!ections,expeditiously aild will not use this judgment as an excuse to postpone the elcct!<>ns indefinitely. On 27th September, 1974, when we decla~ed ·our or~or, wt. had asked Counsel for the State Governm,nt to impren upon his clients the need, especially in the pre-sent climate!, to preserve the democratic processes.