S. H. A. Raza, J.
1. Mr. Prem Lal Patel, the petitioner of this writ petition, has assailed the Ordinance No. 10 of 2000, by means of which certain amendments were made in the Uttar Pradesh Panchayat Raj Act. 1947, on the ground that the Ordinance is ultra vires to the provisions of Article 243-E(3)(a) of the Constitution of India which came into force on 24th April. 1993. by the Constitution (Seventy-third) Amendment Act, 1992. Before dealing with the vires of the Ordinance, it would be relevant to reproduce Article 243E of the Constitution of India.
243-E. Duration of Panchayats. etc.--[1] Every panachayat, 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 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).
(3) An election to constitute a Panchayat shall be completed :
(a) before the expiry 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 any election under this clause for constituting 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.
2. Thus the proposition emerges out from a perusal of Article 243E, of the Constitution of India is that the maximum term for which a panchayat can function is five years from the date appointed for its first meeting which cannot be extended. The election to constitute a panchayat shall be completed before the expiry of its duration specified in clause (1) of Article 243E.
3. It appears that the State of U. P. has issued the Ordinance under Entry 5. List-11, which empowers the Legislature of the State to make laws regarding local Government, that is to say, the Constitution and powers of Municipal Corporation, improvement trusts, district board, mining settlement authority and other local authorities for the purpose of local self-Government or village administration.
4. In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor of U. P. ordered the publication of U. P. Panchayat Vidhi (Sanshodhan) Adhyadesh. 2000. It was promulgated and published in U. P. Extraordinary Gazette on 18th March, 2000. The Ordinance is reproduced below :
Chapter-I
Preliminary
This Ordinance may be called the Uttar Pradesh Panchayat Laws (Amendment) Ordinance, 2000.
Chapter-II
Amendment of the United Provinces Panchayat Raj Act, 1947.
1. In Section 12 of the United Provinces Panchayat Raj Act, 1947, hereinafter in this Chapter referred to as thePrincipal Act, after subsection (3), the following subsection shall be inserted, namely :
'(3A) Notwithstandinganything contained in any otherprovisions of this Act, where, dueto unavoidable circumstances orin public interest, it is notpracticable to hold an election toconstitute a Gram Panchayatbefore the expiry of its duration,the State Government or anofficer authorised by it in thisbehalf may, by order, appoint anAdministrative Committeeconsisting of such number ofpersons qualified to be elected asmembers of the Gram Panchayat,as it may consider proper or anAdministrator and the membersof the Administrative Committeeor the Administrator shall holdoffice for such period notexceeding six months as may bespecified in the said order and allpowers, functions and duties ofthe Gram Panchayat, its Pradhanand Committees shall vest in andbe exercised, performed anddischarged by suchAdministrative Committee or theAdministrator, as the case maybe.'
2. In Section 12BB of the Principal Act, after subsection (2), the following subsection shall be inserted.namely :
'(3) The State Government shall, in consultation with the State Election Commission by notification, appoint the date ordates for general election or bye-election of the Pradhan. Up-Pradhan or members of a Gram Panchayat.'
5. Now it has to be examined as to whether even due to unavoidable circumstances, or public interest (which has not been mentioned or explained in the Ordinance), the election of panchayat may be deferred by promulgating an Ordinance or enactment.
6. The learned Advocate General defending the Ordinance, urged that the duration of the existing Gram Panchayats and Zila Panchayats will expire in the month of May. 2000, while the duration of Kshetra Panchayat will continue till January 2001. The Pradhans of Gram Panchayats are ex officio members of the Zila Panchayats. As the Gram Panchayats. Kshetra Panchayats and Zila Panchayats unitedly constitute a well-defined Panchayatl Raj system according to the spirit of the Constitution ; it will be expedient that elections to all the three tiers of panchayats be held simultaneously which was also a practice in the past.
7. It was further asserted that process of delimitation of the constituencies have not been completed and the Government has ordered that it shall be completed till 20th July. 2000. Certain new communities including the Jats, have been declared as other Backward Classes on 10.03.2000, whereas proper representation to the Other Backward Class is also required. Holding of the elections of Gram Panchayats and Zila Panchayats at one point of time and elections of Kshetra Panchayats at another point of time, will have the financial implications meaning thereby that about Rs. 70 crores shall be required and due to financial constraints. It is not feasible for the State to hold these elections at two different points of time.
8. It was pointed out by learned Advocate General that as the provision of Article 243E is silent about the powers to fix the date of elections, therefore, to fill up this gapthe impugned Ordinance was issued. Similar provisions are also available in U. P. Municipalities Act, 1916 and U. P. Kshetra Panchayat and Zila Panchayat Adhiniyam. 1961.
9. It was vehemently urged on behalf of the Slate that the constitutionality of the amendment in the U. P. Panchayat Raj Act by means of the said Ordinance cannot be challenged. The State Government is the better Judge to assess the gravity of the situation and it arrived to a conclusion that in the present situation it was not possible to hold elections for the panchayats. Nothing has been provided in the Constitution that even in situations when the State cannot hold the election, it must hold the same even if the situation is not conducive to hold the election.
10. However, it was conceded by the learned Advocate General that though it is mandatory to hold the elections of panchayats before the expiry of its duration, but due to unavoidable circumstances or in public interest, when it is not practicable to hold the elections, the Slate Government had to make some provisions to run the panchayats, hence it was provided that during the interregnum, the Administrative Committees shall discharge the functions of the panchayats. The said amendment has been brought to meet the challenges before the State Government under the said situation.
11. Taking a cue from the provisions of Article 172 of the Constitution of India, the learned Advocate General submitted that every State Legislative Assembly of every States unless sooner dissolved, may continue for five years from the date of appointed first meeting and no longer and the expiration of said period of five years shall operate as, a dissolution of the Assembly. Provided that the said period may, while a proclamation of emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending. In any case, beyond a period of six months after the proclamation has ceased to operate.
12. The contention of the learned Advocate General in that regard is totally misconceived. By means of the impugned Ordinance, the term of panchayats have not been extended. The Ordinance only provides the deferment of the elections and in between or during interregnum, the Administrative Committees will discharge the functions and obligations of the panchayats. The provisions under Article 172, of the Constitution of India deals with a situation when the proclamation of emergency is in operation. The duration of the State Legislature during that period may be extended by Parliament by a law for a period not exceeding one year at the time and not extending, in any case beyond a period of six months after the proclamation has ceased to operate.
13. The State Legislature in the present case has been discharging its functions. The Assembly has not been suspended. No proclamation of emergency has been promulgated by the President of India. Hence the provisions of Article 172 of the Constitution of India has no application to the facts of the case.
14. On behalf of the State Election Commission a counter-affidavit has been filed, which supports the contention of the petitioner to the extent that the election must be completed before the expiry of period of five years as specified in clause (1) of Article 243E of the Constitution of India.
15. It was contended that the State Election Commission informed the Secretary. U. P. Panchayat Raj. Uttar Pradesh Shasan in writing, on 22.09.1998 drawing his attention for holding election of Members of Gram Panchayats, Kshetra Panchayats and Zila Panchayats and Pradhans of Gram Panchayats within the specified period of five years. The letter indicated that in case there was necessity for de-limitation of territorial constituency of any panchayats due to change of circumstances, necessary steps regarding the same may be taken so that election for the aforesaid seats ofGram Panchayats, Kshetra Panchayats and Zila Panchayats may be held in April. 2000. In the said letter, it was pointed out that in case any change in the rotation of reserved categories of seats in panchayat was required, necessary steps for the same might also be taken to avoid any delay in completing the process of election in April. 2000. But the State did not respond to the request of the State Election Commission.
16. The attention of the Government. Secretary Panchayat Raj was again drawn on 31.12.1998 for fixing the territorial constituencies of new districts carved out from old Districts in view of bifurcation of old districts and a request was made to participate in the meeting scheduled for 6.1.1999, to discuss the various problems which has arisen out of the aforesaid creation of new districts.
17. As a follow-up action to the aforesaid letter, a meeting was held on 6.1.1999 and issues arising out from creation of new districts, were discussed with the Director of U. P. Panchayal Raj. It was decided that the work of de-limitation of territorial area of Gram Panchayat, if any, be completed by 31st March, 1999. On 30th March. 1999. Secretary. Panchayat Raj. Uttar Pradesh Shasan, addressed a letter to Director Panchayat Raj. U. P., Lucknow, with endorsement to all District Magistrates who were ex-officio District Election Officers, to complete the entire de-limitation work by 30th April. 1999.
18. It was further averred by the Election Commission that as a follow-up action to that letter, the Director Panchayat Raj issued a letter to all the District Officers on 1.4.1999, directing them to invite objections with regard to the de-limitation of territorial area of Gram Panchayata by 15th April, 1999, and the final disposal by 30th April, 1999.
19. It was categorically stated in the counter-affidavit filed by the Commission that all necessary steps have already been taken to hold the elections from the various seats of Gram Panchayats and KshetraPanchayats and Zila Panchayats in April. 2000. All the necessary preparations have been made by the Commission. Electoral Rolls were got prepared, ballot-papers were printed, booklets providing directions for holding elections were published and election material was distributed to District Election Officers to conduct the election. The U. P. Government allotted a sum of Rs. 50 crores to meet the expenses of holding election, out of which a sum of Rs. 40 crore has already been distributed to District Election Officers for making preparations at district level for holding elections within the time schedule.
20. In the counter-affidavit, it was further stated that on 22.10.1999. Joint Secretary. Ministry of Rural Development. Government of India, New Delhi, addressed a letter to Secretary. Panchayat Raj. Uttar Pradesh Shasan, drawing his attention to the mandate contained in Article 243E(3)(a) of the Constitution of India which stipulates that elections to - re-constitute the panchayats must be held prior to the expiry of term of current panchayats. That letter was received by the Secretary. Panchayat Raj. Uttar Pradesh Shasan, on 3.11.1999, but the same was forwarded to Secretary. State Election Commission by letter dated 31st January. 2000. Prior to receipt of that letter. State Election Commission had already taken steps and made preparation to hold elections within the specified period and thus complied the command contained in Article 243E(3)(a) of the Constitution of India.
21. On 13.8.1999, the State Election Commissioner requested the erstwhile the Chief Minister Sri Kalyan Singh, to issue directions to the concerned officers of Panchayat Raj Department to extend their cooperation for holding election within the stipulated period. Again on 15.3.2000, the State Election Commissioner addressed a letter to Sri Ram Prakash Gupta, the present Chief Minister, giving reference to the earlier letter to the then Chief Minister, regarding the necessity ofholding the elections for seats or Gram Panchayats, Kshelra Panchayats and Zila Panchayats before expiry of their terms of five years, in view of edict of the Constitution of India contained in Article 243E(3)(a). It was pointed out in that letter that all officers must take all necessary steps for preparation to hold the said elections. A request to the Chief Minister was made to issue necessary instructions to the concerned officers to co-operate in holding the elections within the time schedule.
22. As no response came forward from the State Government, the State Election Commissioner again addressed a letter to the Chief Minister on 18th March, 2000, requesting him to direct the concerned officers to issue the notification specifying the time-table of elections latest by 22nd March. 2000, so that panchayat elections may be held between the period of 18.4.2000 to 28.4.20OO.
23. It was submitted by the State Election Commissioner that the amendment in the Panchayat Raj Act, 1947, by means of Ordinance encroaches upon the plenary powers of State Election Commission with regard to superintendence, direction and control of 3 er elections of Panchayats by the State Election Commission, contained in Article 243K of the Constitution of India. It was submitted that the provisions made in Ordinance that during the interregnum, after expiry of five years from the date appointed for its first meeting of Gram Panchayat. Kshetra Panchayat and Zila Panchayat, Administrative Committee to be constituted, which shall look after the management of the Gram Panchayats, Kshetra Panchayat and Zila Panchayat, in effect nullifies the mandate of the constitutional provisions contained tn Article 243E of the Constitution.
24. The State Election Commissioner further averred in the counter-affidavit that the reasons for postponing the elections on the ground that it will be inconvenient and impracticable to hold election ofChair-persons of all the three institutions of local bodies, namely. Gram Panchayat, Kshetra Panchayat and Zila Panchayat together, is incorrect, as such elections can be easily held in two parts.
25. As regards holding of elections for Members and Pradhan of Gram Panchayat, and Members of Kshetra Panchayat and Zila Panchayat, it was pointed out by the Commission that it can be held within the stipulated period of five years in the month of April/May,2000. Election of Pramukh of Kshetra Panchayat can be held afterwards as their terms will expire in January,2001. These elections can be easily held after the elections of members and Pradhan of Gram Panchayat are over as Kshetra Panchayat and Zila Panchayat can be constituted only after their Chairpersons are elected by indirect election. By resorting to this alternative, the mandate of holding elections within the stipulated period contained in Article 243E(a), of the Constitution of India will not be contravened, as it will not be inconvenient and impracticable also to hold elections of Kshetra Panchayat in the interregnum. Likewise after election of Members and Pradhan of Gram Panchayat and election of members of Zila Panchayat and Kshetra Panchayat. Commission can hold indirect elections for the office of Chairpersons and Deputy Chair-persons of Zila Panchayat and Kshelra Panchayat and Deputy Chair-persons of Gram Panchayat in between June and October. 2000.
26. It was vehemently urged by Mr. R, C. Gupta who has appeared on behalf of the State Election Commission that Part IX of the Constitution of India added by the 73rd Amendment, nowhere provides for administrative committees to be constituted as provided in clause 3 (ka), added to Section 12 of the U. P. Panchayat Raj Act and Sections 8 and 20 of the U. P. Kshetra Panchayat and Zila Panchayat Act. 1962. This provision being inconsistent with the constitutional directive is void and, therefore, it will not be Just andproper to resort to such arrangement for postponing the Panchayat elections.
27. It was submitted that the State Election Commission has always been ready to hold 3-tier Panchayat Elections within the stipulated period of five years as provided under Article 243E of the Constitution of India, and it has also taken all necessary steps for the same well in time and had further made full preparations for holding elections in a fair and impartial manner. It was reiterated that it got prepared electoral rolls, printed booklets containing directions to hold elections, got printed ballot papers, provided money to all Districts for making arrangement for holding elections at District Headquarters, organised meetings and discussed measures to maintain law and order during polls but the Government did not like to hold elections within the stipulated period and abruptly on 18.3.2000, promulgated Ordinance No. 10 of 2000, usurping the absolute powers of the Commission relating to issue of notification, initiating election process and fixing time table of 3-tier Panchayat Elections. In such circumstances delay and laches in holding panchayat elections cannot be attributed to the Commission.
28. Mr. R. N. Gupta made a categorical statement before this Court that Election Commission in spite of the dilatory tactics adopted by the State Government, can hold the election and conclude the elections within the specified period.
29. According to Article 243E, of the Constitution of India, the term of the panchayat is of a fixed tenure, i.e., five years from the date appointed for its first meeting and no longer unless sooner dissolved under any law for the time being in force. In case of dissolution of the panchayat, the election of the panchayat must be held before the expiration of period of six months from the date of its dissolution, provided that where remainder for the period for which dissolution of panchayat would be constituted, is less than 6 months, it shall not be necessary to hold anyelections under that Article for constituting the panchayat.
30. The Stale Government has been vested with a power under Entry 5 of List II, to issue Ordinance or enact the Government Laws regarding the Constitution and powers of Municipal Corporation and Local Authorities for the purpose of local self Government or village administration. But whether it can do so by trampling down the edict of the Constitutional provision contained in Article 243E and 243K, which vest plenary powers to the State Election Commission, consisting of State Election Commissioner regarding superintendence, direction and control of preparation of electrocal rolls and conduct of all elections to the panchayats.
31. The constitutional flat contained in Article 243E is to the extent that every panchayat unless 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. The mandate is absolute. No panchayat can function for more than a period of five years. The words 'shall and no longer' are of paramount importance. Article 243E, leaves no option, by providing that an election to constitute the next panchayat shall be completed before the expiry of his duration specified in clause (1). A perusal of the said Article shows that word 'shall' has been used, meaning thereby : that election must be held before the expiration of the term of the panchayat as specified in clause (1). The words 'no longer' unequivocally mandates that fresh elections to constitute the next panchayat at any cost must be completed before expiry of the duration of five years of ongoing panchayat.
32. In view of the constitutional mandate neither the Governor of U. P. State nor the State Legislature possesses any legislative competence to enact any provisions or issue an Ordinance which amounts to circumventing or nullifying the mandate of Article 243E, of theConstitution of India in any manner, whatsoever.
33. Article 13(2), of the Constitution provides that State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall to the extent of the contravention, be void. Thus, any law made by any Legislature or any other authority after the commencement of Constitution which contravenes any of the fundamental rights indicated in Part-III of the Constitution shall, to the extent of contravention, be void. Besides this, under Article 246(3), power of Legislature is subject to the provisions of the Constitution, as such power of Legislature is subject to Part IX of the Constitution. If any law is repugnant to the Constitution. It will be void to the extent of repugnancy to such a law, as the Constitution of India is supreme law and any law which is not consistent with the provisions of the Constitution would be deemed to be ultra vires.
34. The State cannot claim any superior power in respect of the matters mentioned in Entry 5, of List II, which the Constitution does not permit. The exercise of the powers under Entry of List II, shall be subject to the provisions of Part IX, of the Constitution. After the constitutional amendments were made and Chapter IX, was substituted, the powers of the State Legislature has been circumscribed in respect of the matters falling under Chapter IX. The State Legislature cannot trench upon the field of Article 243E or Article 243K, of the Constitution by deferring the elections of the panchayat beyond five years and usurping the power of State Election Commissioner.
35. The learned Advocate General tried vainly to salvage the defect in the Ordinance by asserting that Article 243E, does not envisage as to what should be done when the elections of the panchayat cannot take place before the expiry of its duration specified in clause (1) of Article 243. A contingency may arise, when the elections cannot be held onaccount of earthquake, flood or cyclone, riot or any act of God.
36. What we have understood from the argument of learned Advocate General, is that as the Constitution remained silent with regard to unforeseen situations in which the elections cannot be held, the State Legislature which is vested with the power to make a law under Article 243C, of the Constitution, to compose the panchayat, can fill up the gap by either issuing an Ordinance to defer the election. We are of the view that the contention is misconceived inasmuch as. Section 3, of the impugned Ordinance which seeks to substitute sub-section (3), in Section 12BB, of the U. P. Panchayat Raj Act, not only trench upon the field of Article 243K, of the Constitution but also more or less nullify the powers of the State Election Commission. Under Article 243K(1) of the Constitution, superintendence, direction and control of the preparation of electoral rolls and the conduction of all elections all to the panchayats is vested in the State Election Commission consisting of State Election Commissioner to be appointed by the Governor. Matters regarding issuance of the notification for the election appointing date or dates of the general election or by-election of the Pradhan or Up-Pradhan or members of the Gram Panchayat falls within the scope and ambit of the superintendence, directions and control of the State Election Commissioner, who is appointed by the Governor of the State under Article 243K(1), of the Constitution. By means of the substitution of clause (3), in Section 12BB of the U. P. Panchayat Raj Act, the State Government has taken upon itself, the task of issuing notification for the election appointing date or dates for the general election or by-election of the Pradhan or Up-Pradhan, or members of the Gram Panchayat with the consultation of the Election Commissioner. The edict of Article 243K, is unambiguous and clear. All such powers are vested to the State Election Commissioner. The State Government cannot enact a law, which is inconsistent with anyprovisions of the Constitution much less Article 243K, which encroaches upon the field, which is occupied by the State Election Commissioner.
37. In effect, the entire Ordinance suffers from repugnancy to the Constitutional provisions contained in Articles 243E and 243K of the Constitution. Any attempt on the part of the State Government to nullify the effect of any provision of the Constitution deserves depreciation. If the State Government does not abide by the Constitutional mandate, by issuing an Ordinance, which is not in consonance with any provision of the Constitution of India, the State Government is to be squarely blamed for the delay, if any, in holding the election. We are definitely of the view that the entire Ordinance is ultra vires to the provision of Articles 243E and 243K, of the Constitution of India. The view which we have taken is fortified by the pronouncement of a Division Bench of Karnataka High Court in Professor B. K. Chandra-shekhar and another v. State of Karnataka. AIR 1999 Karn 461.
38. In view of what has been indicated hereinabove, the writ petition succeeds and is allowed. The entire Ordinance No. 10 of 2000, by means of which provisions of U. P. Panchayat Raj Act, were amended are declared unconstitutional and ultra vires to the Constitution of India. Respondents including the State Election Commissioner is directed to hold the election of panchayat before the expiry of five years in accordance with the provisions of Article 243E(3)(a), of the Constitution of India. Respondents, including the State Election Commissioner and other officers are directed to issue notifications for holding the election, indicating therein the entire programme of the election, positively within three days, from the date of production of a certified copy of this order. The State Government shall make available to the State Election Commission such staff and funds as may be necessary for the discharge of the functions conferred on the State Election Commissioner, as well as provide to the Commission, all the help and assistance in that regard.