# STATE OF U.P. AND ORS. ETC. ETC v. PRADHAN SANGH KSHETIRA SAMITI AND ORS. ETC. ETC

- **Citation:** [1995] 2 S.C.R. 1015
- **Court:** Supreme Court of India
- **Decided:** 1995-03-24
- **Case number:** Civil Appeal Nos. 3771-78 of 1995
- **Bench:** P.B. Sawant, S.C. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-and-ors-etc-etc-v-pradhan-sangh-kshetira-samiti-and-ors-etc-etc-12844
- **Pages:** 46

## Headnote

Constitution of India-Arts.40 and 243 (g)-Village-Definition ofGovernor can declare any populated rnral area as a village-It does not stick
to any particular concept or any pre-conceived notion of village.
Constitution of India-Art.243(g)-U.P. Panchayat Raj Act, 1947-Section 2(t)-Villag~oncept o~Villages recorded in revenue records--l'ower
of declaring village with State Government-Whether section 2(t) is violative
of Art 243(g)-Held, No-Constitution equates Governor with State Government-Notification issued by Government or a general or special order issued
A
B
c
by State Government-Constitutionally both are acts of Governot-NotificaD
tions dated 9-5-1994 and 4-8-1994-Legality of.
Constitution of India-Art.243(b )-U.P. Panchayat Raj Act, 1947-Section 2(g)-Gram Sabha-Definition-Whether definition given in section 2(g)
is ultra vires provisions of Constitution-Held, No.
U.P. Panchayat Raj Act, 1947-Section 3--Establishment of a gram
sabha for a group of village~Whether results in loss of identity of village with
smaller population-Held, No.
E
Constitution of India-Article 243(e)-U.P. Panchayat Raj Act,
1947-Section 2( 11) r/w s 11-F-Panchayat area-carving out panchayat area
F
on basis of population-Whether provisions of section 2(11).r/w s 11-F are
ultra vires Art. 243(e)-Held, N~Art 243(e) does not require that panchayat
should be constituted on basis of territorial area alone.
Constitution of India-Articles 243-D, 243-K-Elet:toral matters-Bar G
on interference by court~Validity of d~limitation of panchayat area or of
initial area and allotment of seats to constituencieS-Challenged-Whether
court could have entertained such challenge-Held, No-Even this challenge
could not have been entertained after issue of election notification.
Constitution of India-Articles 243(g), 154( I) and 163-U.P. H
1015
1016
SUPREME COURT REPORTS
[1995] 2 S.C.Ri
A
Panchayat Raj Act, 1947-Section 96-A-Delegation of power under the
Act-Wlzether Sec. 96-A is ultra vires Art.243(g)Held, No.
Constitution of lndia-A1t. l4-U.P. Panchayat Raj Act, 1947-Sections
3 and 11-F-Detennination of Panchayat areas and gram sabhas-Obligat01y
on State Government to hear objection before panchayat areas are
B finalised-Cliange in areas of local bodies results in civil co!isequenceS-Post
decisional hearing-Sufficient compliance in urgent matters.
U.P. Panchayat Raj Act, 1947-Nyaya Panchayats-Organisation
of-Act making provision for-Wliether ultra vires the Constitution-Held,
C
No.
On coming into force on 24.4.1993 of the Constitution (Seventy-Third
Amendment) Act, 1992, which gives effect to one of the Directive Principles
of State Policy, viz., Article 40 of the Constitution of India whereby the
State is directed to organise village pancha)'ats as units of self-government,
D
the States were required by the Centre to take steps to organise village
panchayats on the lines of the said Constitutional Amendment by making
a law or amending the existing law suitably. The Uttar Pradesh State
Legislature amended the U.P. Panchayat Raj Act, 1947 by enacting the U.P.
Panchayat Raj (Amendment) Act, 1994. As per the provisions of the Act,
several Government instructions and notifications were issued and rules
E
F
G
. were framed with a view to hold elections to the panchayats. The declaration of the gram panchayat areas u/s H-F and the establishment of the
gram sabhas u/s 3 were made. The elections to the new panchayats were
then notified. In pursuance of this notification the election process was to
commence on 29.9.1994.
The respondents fil~d writ petitions in the Allahabad High Court
alleging that the Government orders were being violated in the process of
re-organization and delimitation of the constituencies. Writ petitioners
also challenged the validity of the Constitutional Amendment as well as
the vires of the Panchayat Raj Act. The State Government renotified the
dates of election.
The High Court held that the definitions of 'village' u/s 2(t), of
'Gram Sabha' u/s 2(g), and

## Text

_Characters 0–39,821 of 119,510. This is a partial read: ask again with offset=39821 for what follows._

t
STATE OF U.P. AND ORS. ETC. ETC.
v.
PRADHAN SANGH KSHETIRA SAMITI AND ORS. ETC. ETC.
MARCH 24, 1995
[P.B. SAWANT AND S.C. AGRAWAL., JJ.)
Constitution of India-Arts.40 and 243 (g)-Village-Definition ofGovernor can declare any populated rnral area as a village-It does not stick
to any particular concept or any pre-conceived notion of village.
Constitution of India-Art.243(g)-U.P. Panchayat Raj Act, 1947-Section 2(t)-Villag~oncept o~Villages recorded in revenue records--l'ower
of declaring village with State Government-Whether section 2(t) is violative
of Art 243(g)-Held, No-Constitution equates Governor with State Government-Notification issued by Government or a general or special order issued
A
B
c
by State Government-Constitutionally both are acts of Governot-NotificaD
tions dated 9-5-1994 and 4-8-1994-Legality of.
Constitution of India-Art.243(b )-U.P. Panchayat Raj Act, 1947-Section 2(g)-Gram Sabha-Definition-Whether definition given in section 2(g)
is ultra vires provisions of Constitution-Held, No.
U.P. Panchayat Raj Act, 1947-Section 3--Establishment of a gram
sabha for a group of village~Whether results in loss of identity of village with
smaller population-Held, No.
E
Constitution of India-Article 243(e)-U.P. Panchayat Raj Act,
1947-Section 2( 11) r/w s 11-F-Panchayat area-carving out panchayat area
F
on basis of population-Whether provisions of section 2(11).r/w s 11-F are
ultra vires Art. 243(e)-Held, N~Art 243(e) does not require that panchayat
should be constituted on basis of territorial area alone.
Constitution of India-Articles 243-D, 243-K-Elet:toral matters-Bar G
on interference by court~Validity of d~limitation of panchayat area or of
initial area and allotment of seats to constituencieS-Challenged-Whether
court could have entertained such challenge-Held, No-Even this challenge
could not have been entertained after issue of election notification.
Constitution of India-Articles 243(g), 154( I) and 163-U.P. H
1015
1016
SUPREME COURT REPORTS
[1995] 2 S.C.Ri
A
Panchayat Raj Act, 1947-Section 96-A-Delegation of power under the
Act-Wlzether Sec. 96-A is ultra vires Art.243(g)Held, No.
Constitution of lndia-A1t. l4-U.P. Panchayat Raj Act, 1947-Sections
3 and 11-F-Detennination of Panchayat areas and gram sabhas-Obligat01y
on State Government to hear objection before panchayat areas are
B finalised-Cliange in areas of local bodies results in civil co!isequenceS-Post
decisional hearing-Sufficient compliance in urgent matters.
U.P. Panchayat Raj Act, 1947-Nyaya Panchayats-Organisation
of-Act making provision for-Wliether ultra vires the Constitution-Held,
C
No.
On coming into force on 24.4.1993 of the Constitution (Seventy-Third
Amendment) Act, 1992, which gives effect to one of the Directive Principles
of State Policy, viz., Article 40 of the Constitution of India whereby the
State is directed to organise village pancha)'ats as units of self-government,
D
the States were required by the Centre to take steps to organise village
panchayats on the lines of the said Constitutional Amendment by making
a law or amending the existing law suitably. The Uttar Pradesh State
Legislature amended the U.P. Panchayat Raj Act, 1947 by enacting the U.P.
Panchayat Raj (Amendment) Act, 1994. As per the provisions of the Act,
several Government instructions and notifications were issued and rules
E
F
G
. were framed with a view to hold elections to the panchayats. The declaration of the gram panchayat areas u/s H-F and the establishment of the
gram sabhas u/s 3 were made. The elections to the new panchayats were
then notified. In pursuance of this notification the election process was to
commence on 29.9.1994.
The respondents fil~d writ petitions in the Allahabad High Court
alleging that the Government orders were being violated in the process of
re-organization and delimitation of the constituencies. Writ petitioners
also challenged the validity of the Constitutional Amendment as well as
the vires of the Panchayat Raj Act. The State Government renotified the
dates of election.
The High Court held that the definitions of 'village' u/s 2(t), of
'Gram Sabha' u/s 2(g), and of 'Panchayat Area' u/s 2(11) r/w s 11-F of the
Act were ultra vires the respective definitions given in Articles 243(g),
H
243(b), and 243(e) r/w Article 243-C of the Constitution. The High Court
J
'r
STATE v. P.S.K. SAMIT!
1017
further held that the village had to be a habitat according to the A
anthropological concept; that the village for the purposes of the Panchayat
could be specified only in accordance with the wishes of the inhabitants of
the village as conveyed to the Governor who was obliged to notify it without
involvement of the State Government; that the Governor had to act independently of the State Government in the matter of specification of the
'village' and further the village will have to be fixed according to the
aspirations, chauvinism and the wishes of the villagers. As regards the
'Gram Sabha', the Court held that although the definition of Gram Sabha
referred to a body of persons registered in the electoral rolls, the references
to 'establishment u/s 3' and the provision for establishment and notificaB
tion of Gram Sabha in section 3, were ultra vires the Constitution and that C
the State Government had no power to establish or notify Gram Sabha.
Allowing the appeals the Court
HELD : 1.1. Article 40 of the Constitution does not define 'village' as D
such. It only refers to the organisation of 'village panchayats' as units of
self-government. Article 243 (g) of the Constitution defines 'village' to mean
a village specified by the Governor by public notification to be a village for
the purposes of the said part and includes a group of villages so specified.
This definition of'village' on the one hand, does not stick to any particular,
much less the vintage concept of village that the High Court had in mind, E
viz., the anthoropologically evolved and sociologically identifiable habitat
and on the other, it gives the Governor power to specify a village as he may
deem fit. The village so specified by him may include a group of villages.
The Constitution permits the Governor to declare any populated rural
area as a village. The village which the Governor has to specify is a village F
W- for the purpose of carrying out the provisions of Part IX of the Constitu-
.,
tion and not for any other purpose. Hence to bring in any particular
concept of village and to read into the said Article any pre-conceived notion
,.,.-....
of village is unwarranted by law. [1030-E-G]
1.2 There cannot be any immutable social, political, economic or G
organisational concept of village as a self- governing unit. In a developing
country like ours, where the population is growing fast, where the society
is in ferment on all fronts, where divisive forces of all kinds abound, where
the vast majority of population is illiterate and is the victim of ignorance,
superstition, blind - faith, bilases and prejudices, and is shackled by H
1018
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A tradition, and irrational customs and practices, there is an urgent need to
evolve means to unite and integrate the society, to expose the populace to
larger and higher goals, to imbibe in them the wider perspectives and to
forge a socially cohesive front for breaking the barriers of race, caste, class,
religion and region rather than to pander to the age-old, self-centered
B physical and mental barriers. Article 40 not only does not define "village"
but also does not require that the village panchayats should be organised
on the basis of any particular concept of village much less the vintage
concept which appears to have appealed to the High Court. [1043-C-E]
1.3. If separate identities, chauvinism, divisible sentiments and feelC ings are nurtured from the grassroot level, they are bound to erode the
foundation of the unit and integrity of the country and should be the last
thing on the social and political agenda of the country. On the other hand,
the need of the day is to create social, political and economic entities
crossing all barriers and wedded to the nationhood as the ultimate goal.
D Anthropological and sociological entities may be natural so far as the blood
and familial relationships and attachments go and have their place in
certain limited spheres. But they have no place while shaping democratic
political and administrative units. Nor are they conducive to social and
economic progress. On the other hand, they often prove insurmountable
blockades to promoting the ideals enshrined in the Preamble of the ConE 'stitution. Sometimes, smaller the social, political and administrative entities, the greater the dominance of one section on the other and deeper the
prejudices. The need is to organise viable social, political, economic and
administrative units of optimum size at the lowest level on a rational basis
keeping in mind the size of the population, the needs of social and economic
F development, availability of resources, the transport and communication
facilities, convenience of administration and other relevant factors. Over~
the years, not only the population in the rural areas has grown enormously
.......
but the complexion of the rural areas has also undergone a change. With the
increasing pressure on land, there has been a steady migration from the
rural to the urban and semi-urban areas. Some villages are almost deserted
G while others survive much below the poverty line. At the same time, some
have emerged as small pockets of comparative prosperity, thanks to marginal industrial and commercial activities around them and the nearness to
the urban and semi-urban areas. There is further a limit to the number of
village panchayats which may be constituted with all the overhead expenses
H involved in the exercise which must have a rational relatio~ to the result
fl
STATE 1•_ P.S.K. SAMIT!
1019
sought to be achieved. In the State ofU.P., there are 1,20,000 villages. Before A
the present exercise of constituting the village panchayats under the Act,
there were 74,000 gram sabha!i which are now reduced to 55,000. With the
nature and range of functions enstrusted to the new village panchayats
ur ;1er the Act, and the expenditure that may have to be incurred in constituting and running them, it can hardly be said that their number, structure and organisation militate in any way against the concept of democracy
and the principle of self-governance. Section 11-F(l) by laying down for
non-hilly areas a norm of a village panchayat for every 1000 population as
far as practicable and for hilly areas, for every 5 kilometers radius-distance,
has in fact tried to observe the principle of self-governance as closely as
possible. [1043-H, 1044-A-H, 1045-A-C]
1.4 Article 243 (g) of the Constitution defines village to mean "a village
specified by the Governor to be a village and includes a group of villages so
specified". In other words, according to this definition, any existing village
B
c
or a group of the existing villages may be specified by the Governor as a D
village for the purposes of organising a village panchayat. The definition
begs the question as to what is a village which the Governor can specify as a
village for the purposes of constituting the "village panchayat". It is not
disputed that almost all villages in the State have been recorded in the
revenue records of the respective districts in which they are situated. No
material had been placed on record to show that villages had been recorded
E
as such in any other record. There might be some villages and new settlement which were not so recorded There was, therefore, nothing wrong if the
Governor specifies the revenue villages as villages and in addition also
those villages and settlements- which are not so recorded in the revenue
records as villages for the purpose of constituting village panchayats. The
p
"revenue village" is, therefore, a documented ready-made concept of village
and the Governor while acting under Article 243(g) for specifying the village
may adopt the same as village. No restriction has been placed by Article
243(g) on the Governor for accepting the revenue village as a village for the
purposes of constituting village panchayat. In fact, the Governor has been
empowered by the said constitutional provision to declare even a group of G
villages as a village. If this is so, it is not possible to appreciate as to why the
definition of village in Section 2(t) will fall foul of the provisions of Article
243(g). Section 2(t) not only speaks of villages recorded in the revenue
records as such but also includes in the definition, any area which the State
Government may by general or special order declare to be a village for the H
1020
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A
purposes of the Act. The concept of village is not foreign either to the
Constitution or to the State legislation. [11145-G-H, 1046-A-EJ
1.5 If there i~ no restriction placed by the Constitution on the
1Governor in accepting any inhabited rural area as a village, it is dillicult
t~~ appreciate how the Act is violative of the Constitution when the State
B
Gover.nment declares any area including a revenue village as a village. In
any case, the Court cannot substitute its concept of village for that of the
State Government. [1046-G]
2.1 As regards the objection of the. High Court that whereas Article
C
243(g) requires the Governor to specify the village, the Act gives this power
to the State Government to do so, the High Court had faQed to notice the
provisions of the Constitution which equate the Governor with the State
Government in exercise of his functions except where he is by or under the
Constitution required to exercise the function in the direction. In this
connection, provisions of Article 163 of the Constitution state that there
D
shall be a Council of Ministers with the Chief Minister at the head to aid
and advise the Governor in the exercise of his functions except when they
are to be exercised by him under the Constitution in his discretion. It is
also not disputed that when a Minister takes action, according to the rules
of business, it is both in substance and in form the action of the Governor.
E
F
Under the Constitution, therefore, while exercising the non-discretionary
functions, the Governor cannot act without the aid and advice of the
Council of Ministers. To do so will cut at the very root of the cabinet system
of Government we have adopted. [1046-H, 1047-A-C]
Samsher Singh v. State of Punjab, [1974] 2 SCC 831, referred to.
2.2 Admittedly, the function under Article 243(g) is to be exercised
by the Governor on the aid and advice of his Council of Ministers. Under
the rules of business made by the Governor under Article 166(3) of the
Constitution, it is in fact an act of the Minister concerned or of the Council
of Ministers as the case may be. When the Constitution itself thus equates
G the Governor with the State Government for the purposes of the relevant
function, the provision in section 2(t) which realistically gives the power
of declaring the village to the State Government, cannot be said to be
inconsistent with or contrary to Article 243(g). Further, Section 3(60)(c)
of the General Clauses Act, 1873 defines 'State Government' to mean
H
Governor which definition is in conformity with the provisions of the
r
T
STATE v. P.S.K. SAMffi
1021
Constitution. The conclusion of t!!_e. High Court that Section 2(t) was ultra
A
vires Article 243(g) of the 'Constitution was, therefore, not sustainable.
(1048-D-E]
2.3 Reasoning of the High Court that under the Act the State Government could not declare the village by special or general order as required by
section 2(t) because Article 243(g) of the Constitution required the GoverB
nor 'to specify the village by a public notification' was not sustainable.
Admittedly, the general or special order issued by the State Government is
always published in the official gazette. In any case, the order declaring the
villages for the purposes of section 2(t) in the present case was gazetted.
There is a hierarchy of legal instruments such as law, ordinance, order, C
bye-law, rule, regulation and notification. It is recognised even by Article 13
(3)(a) of the Constitution and Section 3(29) of the General Clauses Act,
1897. All the orders, rules, regulations and notifications when made or
issued by the State Government are made or issued in the name of the
Governor by the functionary of the concerned Ministry named in the rules
of business as per the provisions of Article 166 of the Constitution. In view D
of the provisions of Article 154 and of Article 163 read with Article 166 of the
Constitution. 'Governor' means the Government of the State and all executive functions which are exercised by the Governor except where he is
required under the Constitution to exercise the functions in his discretion,
are exercised by him on the aid and advice of the Council of Ministers.
Hence, whether it is a notification issued by the Government or a general or
special order issued by the State Government, constitutionally both are the
acts of the Gove~nor. [1048-F-H, 1049-A-B]
E·
2.4 In the present case, by the notification dated 9th May 1994 issued
under Section 96-A of the U.P. Panchayat Raj Act by the Governor, the
F
r--Powers of the State Government under Section 3 and Section 11-F of the
Act were delegated to the Director, Panchayat Raj, U.P., Lucknow. Pursuant to this delegation, on 4th August, 1994 the Director issued notifica·
tion establishing gram sabhas u/s 3 and declaring Panchayat areas u/s
11-F of the Act. This was a composite notification both for establishing
gram sabhas and declaring panchayat areas. Neither in the notification G
dated 9th May, 1994 delegating powers u/ss 3 and 11-F to the Director nor
in the notification dated 4th August, 1994 establishing gram sabhas and
declaring the panchayat areas, there was a mention either of Section 2(t)
of the Act or of the power delegated to declare the viHage under the said
· provision. However, keeping in mind the scheme of the Act and the H
A
B
c
1022
SUPREME COURT REPORTS
[1995] 2 S.C.R.
provisions of Sections 2(t), 3 and 11-F, it is clear that Section 2(t) merely
defines 'village' and by itself does not give power to the State Government
to declare the village. It states that village in the revenue records of the
district in which it is situate and includ-es any area which the State
Government may by general or special order declare to be a village for the
purposes of the Act. The said section is, therefore, in two parts. By the first
part, it adopts the villages recorded in the revenue records of the districts
as villages for th~ purposes of the Act. By the second part, it accepts as
village any area which the State Government may for the purposes of the
Act declare as such village. There is no separate provision giving power to
the State Government to declare any area as village for the purposes or
the Act. The legislature, probably rightly thought that since the power
given to the State Governn:ient by Section 3 to establish a gram sabha and
by Section 11-F to declare the panchayat area comprise in them the power
to declare the village within the meaning of Section 2(t) and particularly
of the second part of it, it was not necessary to make an independent
provision to enable the State Government to declare the village for the
D
purposes of the Act. It could not be said that this view of the State
Government was wrong for it was not possible to establish a gram sabba
or declare the panchayat area unless the village for which such gram sabha
is to be established and its area are first determined. The notification·
which was issued on 4th August, 1994. further showed that the gram sabha
E
_which was inappropriately titled as gram panchayats were established for
villages within the meaning of Section 2(t) and they comprised the area
either of one revenue village or of more revenue villages than one. Al·
though, therefore, the criticism by the High Court with regard to both the
notifications dated 9th May, 1994 and 4th August, 1994 delegating the
power, and establishing gram sabhas and declaring panchayat areas mi&ht
\
{
F
be justified in that they did not refer to Section 2(t) and the latter
notification had given inappropriate titl~s in columns 2 and 3 thereof, the~"-
said defects did not in any way affect the legality of the said notifications.
All that could be said in that connection was that they could have been
G.
_.l_
correctly and adequately worded. However, in construing legal documents,
it is not their form but their substance which has to be taken into
consideration. Thus construed, the two notifications were in substantial
compliance with the provisions of the act and had to be construed as such.
(1049-C-H, 1050-A·E]
2.S There was no merit in the contention that the first part of Section
H 2(t) which defines 'village' to mean any local area recorded as a village in
j
STATE v. P.S.K. SAMITI
10~3
the revenue records of the district in which it is situate, goes counter to A
the provisions of Article 243(g) in that it forecloses the authority of the
Governor to specify the village for the purposes of establishing a gram
panchayat as envisaged by Part IX of the Constitution. The argument
ignores that whereas the Constitution permits the Governor to specify
village by a notification, it does not prevent the State from .enacting a law
B
for the purpose. The notification issued by the Governor was in fact a
notification issued by the State Government. An enactment of the legislature is certainly a higher form of legal instrument than a notification.
Moreover, the Act has received the assent of the Governor on 22nd April,
1994. Hence, there is not only no conflict between the provisions of Section
2(t) of the Act and those of Article 243(g) but there is an over-compliance
with the provisions of the Constitution. (1050-F-H]
3. Article 243 (b) of the Constitution defines 'gram sabha' to mean
c
"a body consisting of persons registered in the electoral rolls relating to a
village comprised within the area of panchayat at the village level" whereas D
Section 2(g) of the Act defines 'gram sabha' to means "a body established
under Section 3 of the Act consisting of persons registered in the electoral
rolls relating to village comprised within the area of a gram panchayat".
The High Court had taken exception to the word 'established' in Section
2(g) of the Act. There is no provision in Part IX of the Constitution such
as Section 3 of the Act for establishing a gram sabha for a village or a
group of villages by such name as may be specified, and to name the gram
sabha in the name of the village having the largest population when the
gram sabha is established for a group of villages. One may have quarrel
with the use of the expression 'established' in this connection. For it is true
E
to say that gram sabha is nothing but the electorate of the village or
._,, , .,......_-villages comprised within the area of a gram panchayat and in that sense
there is nothing to be established as for as gram sabha is concerned. What
F
-->----.
is to be established is the panchayat for a particular area and for the
electorate constituted in that area. The moment the panchayat area is
declared the electorate comprised in it gets automatically constituted into
the gram sabha. It no longer remains merely an electorate. Whether such G
constitution is called establishment is immaterial. These are matters of
description. Having followed a particular pattern, the legislature has used
the expression 'established' also in connection with the gram sabha along
with the panchayat. There is no reason why the use of the said expression
makes any difference to the intendment of the said provision and how the H
1024
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A said provision goes counter to the provisi!lDS of the Constitution. Surely,
it is not suggested that the gram sabha that the Act seeks to establish does
not. consist of the entire electorate in the panchayat area or excludes some
of it. Therefore, so long as, the definition given in Section 2(g) and the
provisions of .Section 3 of the Act do not in any way detract from the
B
provisions of Article 243 (b) or their intendment, they cannot be held ultra
vires the provisions of the Constitution. (1051-C-H]
4. When villages are united to form a gram sabha and a village
panchayat, they do not lose their name and identity as separate villages.
They come together only for the purpose. of running the gram panchayat.
C In that process, they may also stand to gain inasmuch as they may have
access to more resources, and benefit from bigger schemes and projects
and availability of better infrastructure and equipment to implement the
projects and schemes. It was not, therefore, possible to agree with the High
. Court that the identify of the smaller villages is lost because they are
grouped together for establishing a common gram sabha or gram
D panchayat. (1052-C-D]
{
S.1Article243(e) defines 'panchayat area' to mean "territorial area
\I
-'(
of a panchayat" and Article 243-C speaks about the composition of
panchayats and leaves it to the legislature of a State to make provisions
E
with respect to it. The only conditions that the .latter Article imposes on
the composition of panchayat is firstly, the ratio between the population
of the territorial area of the panchayat at any level and the number of seats
in the panchayat to be filled by election shall, as far as practicable, be the
same throughout the State. Secondly, the seats in the panchayat have to
p
be filled by direct election from the territorial constituencies in. a
panchayat area and for this purpose the panchayat area has to be divided-~, ·,
into territorial constituencies in such a manner that the ratio between the
population of each constituency and the number of seats allotted to it have
.~
as far a practicable to be the same .throughout the panchayat area. So long
as these conditions are complied with, the composition of the panchayat
G that may be evolved by the State legislature cannot be faulted. There was
no material suggesting that these two criteria were breached or were
sought to be breached. On the other hand, section 11-F of the Act has made
~
three provisions to conform to the norms laid down by the said Article,
viz. (i) the panchayat area would be such that as far as practicable, it will
H have a population of 1000 throughout the state; (ii) for the purpose of the
j
STATEv. P.S.K.SAMITI
1025
declaration of the panchayat area, no revenue village or any hamlet thereof A
shall be divided and (iii) in the hill districts which are sparsely populated
and spread over a vast terrain, an area within a radius of 5 kms. from the
centre of the village should be declared as the panchayat area, though the
population comprised in tI,e area may be less than 1000. When Article
243(e) defines, the "panchayat area" to mean the territorial area of B
panchayat, it does not require that the panchayat should be constituted on
the basis of the area alone. The High Court had read otherwise in the said
definition and had, therefore, fallen in an obvious error. When the
panchayat area is determined on the basis of population inhabiting a
particular area, that area will also be a panchayat area within the meaning
of the said Article. The provisions of the Act, viz., Section 2(11) read with
C
Section 11-F do not more than give effect to the definition of panchayat
area in Article 243(e). When the area includes the whole of the village or
a group of whole villages including the hamlets thereof, keeping in view the
uniform norm of the population of 1000 as far a practicable, the panchayat
area gets automatically demarcated by the areas of the village or villages D
comprised therein. (1052-H, 1053-A-G]
5.2 It is for the Government to decide in what manner the panchayat
areas and the constituencies in each panchayat area will be delimited. It
is not for the court to dictate the manner in which the same would be done.
So long as the panchayat areas and the constituencies are delimited in
E
conformity with the constitutional provisions or without committing a
breach thereof, the courts cannot interfere with the same. [1053-H, 1054-A]
The Hingi.r-Rampur Coal Co. Ltd. and Others v. The State of Orissa
and others, [1961) 2 SCR 537, referred to.
6. Neither the delimitation of the panchayat area nor of the con·
stituencies in the said areas and the allotments of seats to the constituen·
F
cies could have been challenged or the Court could have entertained such
challenge except on the ground that before the delimitation, no objections
were invited and no hearing was given. Even this challenge could not have G
been entertained after the notification for holding the elections was issued.
The High Court not only entertained the challenge but had also gone into
the merits of the alleged grievances although the challenge was made after
the notification for the election was issued. (1055-B-C]
Meghraj Kothari v. Delimitation Commission & Ors., (1967) 1 SCR H
1026
SUPREME COURT REPORTS
(1995) 2 S.C.R.
A
400, relied on
B
c
7. Under the Constitution, Governor means the State Government.
Article 154(1) enables the Governor to exercise the executive power of the
State either directly or through officers subordinate to him i.n accordance
with the Constitution. Hence by virtue of Articles 163, the State Government can exercise the power through its officers. Neither Article 243 (g)
nor any other provision in Part IX of the Constitution prevents the
Governor and, therefore, the State Government from delegating its power
mentioned in the said Part to any subordinate officer. The Act makes a
specific provision by Section 96-A thereof for the State Government to
delegate all or any of its powers under the Act to any ojicer or authority
subordinate to it subject to such conditions and restrictions as it may
deem fit to impose. The State Government by a notification issued on 9th
May, 1994 under Section 96-A delegated its powers under Sections 3 and
11-F of the Act to the Director. The power delegated under Sections 3 and
11-F of the Act would impliedly include the power to declare "village" under
D
Section 2(t) of the Act although the said section is not mentioned in the
notification specifically. (1055-E-H]
E
F
8. The original delimitation of the panchayat areas having been made
much prior to the election notification of 31st August, 1994, the respondent-writ petitioners could not have challenged the same after the said
· notification and the Court could not have entertained the challenge. There
was, therefore, no invalidity in the action taken by the State Government
by its notification of 31st August, 1994 to commence the election process.
However, it was obligatory on the State Government to hear the objections
before the panchayat areas were finalised.)A reasonable opportunity for
raising the objections and hearing them ought to be given in such matters
since the change in the areas of the local bodies results in civil consequences. The action of bringing more villages than one under one gram
panchayat when they were earlier under separate gram panchayats, does
involve civil consequences. However, in matters which are urgent even a
G
post-decisional hearing· is a sufficient compliance of the principle of
natural justice, viz., audi alterem panem. (1058-G-H, 1059-B-C]
Visakhapatnam Municipality v. Kandregula Nukaraju & Ors., (1976) 1
SCR 545; S.L. Kapoor v.Jagmohan & Ors., (1980] 3 SCC 379; Baldev Singh
H
& Ors. v. State of Himachal Pradesh & Ors., (1987) 2 SCC 510, Sundarjas
\
!
STATEv. P.S.K.SAMITI(SAWANT,J.]
1027
Kanya/al Bhatija & Ors. v. Collector, Thane, Maharashtra & Ors., [1989] 3 A
SCC 396, and Atlas Cycle lndusaies Ltd. v. State of Haryana & Ors., [1993]
Supp. 2 SCC 278, relied on.
9. The nyaya panchayats are in addition to the gram panchayats.
Whereas the amended provisions of the Constitution do not direct the
organisation of such panchayats, the Constitution does not prohibit their
B
establishment. The organisation of the nyaya panchayats will be in promotion ofthe directive principles contained in Artide 39A of the Constitution.
[1060-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3771-78
of 1995 Etc. Etc.
C
From the Judgment and Order dated 2.12.94 of the AHahabad High
Court in C.M.W.P. Nos. 26812, 29984, 30003, 31248, 31069, 30989, 31048
and 29682 of 1994.
Ashok H. Desai, R.N. Trivedi, Gopal Subramaniam, G.L. Sanghi, D
P.P. Rao, Dushyant Daye, R.B. Misra, P. Sisodia, M/s. Nalin Tripathi,
Ashish Shukla, S.M.A. Nazani, Arvind Verma, Aseem Mehrotra, Rameshwar Tripathi, Vijay Narain Singh Sagar, A.K. Gupta, P.H. Parekh, Goodwill
Indeevar, Ms. B.K. Brar, J.M. Sharma, A.N. Bardiyar, Ashok Gurnani, M/s.
Indu Gurnani, Arun K. Sinha, M.K. Singh, A. Sharan, Abha R. Sharma,
E
• P.K. Bajaj, l.B. Gaur, Dileep Tandon; R.N. Tripathi and Brij Bhushan with
them for the appearing parties.
The foUowing Judgment of the Court was delivered by
SAWANT, J. Special leave granted ..
The Constitution (Seventy-Third Amendment] Act, 1992 came into
force on 24th April, 1993 to give effect to one of the Directive Principles
of the State Policy, viz., Article 40 of the Constitution of India which directs
the State to organise viUage panchayats as units of self-government.
F
G
On coming into force of the said Constitutional Amendment, the
States were required by the Centre to take steps to organise viUage
panchayats on the lines of the provision of the said Constitutional Amendment by making law or amending the existing law suitably. The Uttar
Pradesh State Legislature amended its Panchayat Raj Act, 1947 H
1028
SUPREME COURT REPORTS
(1995) 2 S.C.R.
A [hereinafter referred to as the 'Act') by enacting the U.P. Panchayat Raj
(Amendment) Act, 1994 which came into force on 22nd April, 1994. As per
the provisions of the Act, several government instructions and notifications
were issued and rules were framed between 22nd April, 1994 and 31st
August, 1994 with a view to hold elections to the panchayats. In particular
B
the declaration of the gram panchayat areas under Section 11-F and the
establishment of the gram sabhas under Section 3 were made between 2nd
and 5th August, 1994. The term of the gram panchayats constituted under
the unamended provisions of the Act was to expire on 23rci April, 1993.
The Governor extended their term till 23rd April ·1995 or ~ill new
panchayats were constituted, whichever was- earlier. The elections to the
C new panchayats were then notified on 31st August, 1994. In pursuance of
this notification the election process was to commence on 29th September,
1994.
The respondents approached the High Court by writ petitions beD tween 1st and 9th September, 1994 making a grievance that the Government orders were being violated in the process of re-organisation and
. deliminatation of the constituencies. A few of the respondent-writ
petitioners also challenged the said Constitutional Amendment as well as
the vires of the Act. The High Court heard all the petitions together. The
E
State Government, by filing an affidavit as well as through publications in
the press from 9th September to 19th September, 1994, offered a fresh
time-schedule of the elections and also to remove the grievances after
considering the representations. On 24th SepteD;1.ber, 1994, the State
Government cancelled the notification dated 31st August, 1994. On 26th
F
September, 1994, the High Court reserved its judgment. In the meantime,
under compulsion an.d pressure from the Centre including a threat to stop
the release of funds unless the process of election was completed by 31st
December, 1994, conveyed in the Center's communication dated 12th
November, 1994, the State Government renotified the dates of elections on
26th November, 1994 in pursuance whereof the process of election was to
G commence on 3rd December, 1994.
The High Court by its impugned judgment delivered on 2nd December, 1994 has held, among other things, that the definitions of 'village'
under Section 2(t), of 'Gram Sabha' under Section 2(g) and of 'Panchayat
H Area' under Section 2(11) read with Section 11-F of the Act were ultra
\
STATE v. P.S.K. SAMIT! [SAWANT,J.]
1029
vires the respective definitions given in Articles 243(g), 243(b) and 243( e)
read with Article 243-C of the Constitution. The High Court has further
held: (i) that the village has to be a habitat according to the anthropological
concept, (ii) that the village for the purposes of the Panchayal can be
specified only in accordance with the wishes of the inhabitants of the village
as conveyed to the Governor who is obliged to notify it without involvement
of the State Government, (iii) that the Governor has to act independently
of the State Government in the matter of specification of the "village" and
(iv) further the village will have to be fixed according to the aspirations,
chauvinism and the wishes of the villagers. As regards the Gram Sabha, the
Court has held that although the definition of Gram Sabha refers to a body
of persons registered in the electoral rolls, the reference to "establishment
under Section 3" and the provision for establishment and notification of
Gram Sabha in Section 3, are ultra vires the Constitution and that the State
Government has no power to establish or notify Gram Sabha.
A
B
c
It will appear from the impugned judgment that its main thrust is
D
against the definition of 'village' in Section 2(t) of the Act. The other
findings are directed more against the procedure laid down in the Act to
take the various steps for constituting the panchayats than against the
substantial provisions. Before we deal with the findings of the High Court,
we may usyfully refer to the relevant provisions of the Constitution and the
E
Act.
2. The provisions of Article 40, to give effect to which the 73rd
Constitutional Amendment was effected read as follows :
"40. Organisation of village panchayats. - The States shall take steps
to organise village panchayats and endow them with such powers
and authority as may be necessary to enable them to function as
units of self-government."
F
The aforesaid provisions neither define 'village' nor give guidelines G
for organising village panchayats. All that they require is that the village
panchayats howsoever organised have to be equipped with such powers
and authority as may be necessary to enable them to function as units of
self-government. There is, however, no doubt that when the Article speaks
of village panchayats as units of self-government, it has in view the orH
1030
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A ganisation of the lowest level units of self-governance in the heirarchy of
self-governing, democratic, policy making and administrative units. In other
words, the village panchayats are envisaged by the Article as the base
democratic institutions of a pyramid of the "democratically organised and
functioning self- governing units. This being so, while organising the village
B
c
D
E
F
panchayats, what is necessary to be kept in mind is (a) that they are to be
the self-governing units at the lowest end of the democratic polity, (b) that
being self-governing units, those who are governed by the said units and
for whose benefit they are going to operate, will have either a direct or an
elective indirect representation in them; ( c) that they will have an effective
say in the conduct of their affairs including its plans, policies and programmes and their execution and ( d) that thus they will have not only a sense
and satisfaction of participation but also an experience in the governance
of their own affairs.