http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 26

PETITIONER:

STATE OF U.P. & ORS.ETC.

Vs.

RESPONDENT:

PRADHAN SANGH KSHETTRA SAMITI & ORS. ETC.

DATE OF JUDGMENT24/03/1995

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

AGRAWAL, S.C. (J)

CITATION:

1995 AIR 1512 1995 SCC Supl. (2) 305

JT 1995 (3) 252 1995 SCALE (2)453

ACT:

HEADNOTE:

JUDGMENT:

SAWANT, J.:

1. Special leave granted.

2.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 village panchayats as units of self-government.

3. On coming into force of the said Constitutional

Amendment, the States were

257

required by the Centre to take steps to organise village

panchayats on the lines o the provisions 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 [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 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 23rd April, 1993. The Governor

extended their term till 23rd April 1995 or till new

panchayats were constituted, whichever was earlier. The

elections to the new panchayats were then notified on 31st

August, 1994. In pursuance of this notification the

election process was to commence on 29th September, 1994.

4.The respondents approached the High Court by writ

petitions between 1st and 9th September, 1994 making a

grievance that the Government orders were being violated in

the process of re-organisation and delimitation of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 26

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 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 September,

1994, the State Government cancelled the notification dated

31st August, 1994. On 26th September, 1994, the High Court

reserved its judgment. In the meantime, under compulsion

and 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 Centre'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 commence on 3rd December, 1994.

5. 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 'Grain

Sabha' under Section 2 [g] and of 'Panchayat Area' under

Section 2 [11] read with Section 11-F of the Act were ultra

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

Panchayat 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

258

Grain 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.

6. It will appear from the impugned judgment that its main

thrust is 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 usefully refer to the

relevant provisions of the Constitution and the Act.

7. 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.

8. The aforesaid provisions neither define 'village' nor

give guidelines 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 26

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 Organisation of the lowest

level units of self-governance in the hierarchy 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 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.

So long as the village panchayats are organised to achieve

the said objectives, the requirements of the said Article

will have been complied with both in their spirit and in

letter.

9. We may now turn to the provisions of the 73rd

Constitutional Amendment by which Part IX consisting of

Articles 243 to 243-0 has been introduced in the Con-

stitution.

10. Article 243 [g] 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. It will be apparent from

this definition of 'village' that on the one hand, it does

not stock to any particular, much less the vintage con-

259

cept of village that the High Court has in mind, viz., the

anthropologically 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 for the purpose of carrying out the

provisions of Part IX of the Constitution 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.

11. Article 243 [b] defines 'Gram Sabha' to mean a body

consisting of persons registered in the electoral rolls

relating to a village comprised within the area of panchayat

at the village level. In other words, it is the electorate

of the village panchayat whether the panchayat is for one

village or a group of villages. Article 243 [d] defines

'panchayat' to mean an institution [by whatever name called]

of self government constituted under Article 243B for the

rural areas. This provision further makes it clear that

even the expression 'panchayat' is not of any particular

significance. What is of essence is that the institution so

called must be of self government in the rural area since

the panchayat raj envisaged by the said Part of the

Constitution is for the rural as against the urban areas for

which a provision is made in another part of the Consti-

tution. Much sentiment may not, therefore, be wasted on the

expression ` panchayat'. The attention on the other hand,

has to be focussed on the question whether the institution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 26

so constituted is self-governing or not.

12. The panchayats are to be constituted at the village,

intermediate and district levels and the "panchayat area" as

defined by Article 243 [e] means the territorial area of the

panchayat whether at the village, intermediate or district

levels. What is necessary to remember further is that while

as per Article 243 [c] "intermediate level" is a level

between the village and district levels, as specified by the

Governor, the 'district' as per Article 243 [a] means a

district in a State the boundaries of which may be changed

by the State Government. The district is not required to be

specified by the Governor whereas village and intermediate

levels have to be specified by him for the purposes of the

said Part of the Constitution.

13. Article 243-A states that a Gram Sabha which, as stated

above, is the electorate of the village panchayat, may exer-

cise such powers and perform such functions at the village

level as the legislature of the State may by law provide.

In other words, the powers and functions of the village

panchayat are to be determined by a State enactment.

Article 243-B states that there shall be constituted

panchayats at the village, intermediate and district levels

in accordance with the provisions of the said Part of the

Constitution. However, in a State having a population not

exceeding 20 lakhs, it is not obligatory to constitute

panchayats at the intermediate level.

14. Article 243-C gives direction with regard to the

composition of panchayats at different levels. What is

necessary for our purpose to note from the said

provisions is that throughout the State the number of

260

seats on each panchayat have to have, as far as practicable,

a uniform ratio to the population comprised in the panchayat

area. The panchayat area is further to be divided into

territorial constituencies and the constituencies are to be

so delimited as to maintain throughout the panchayat area a

uniform ratio between the population of each constituency

and the number of seats allotted to it, as far as

practicable. Further, the seats in the panchayat are to be

filled by direct election from the territorial

constituencies. The chairpersons of the panchayats at the

village level have to have representation in the panchayats

at the intermediate level if constituted and at the district

level, if not constituted, and the chairpersons of the

panchayats at intermediate level where they are constituted

are to have representation in the panchayats at the district

level. In addition, the Article directs that the State

enactment may also provide for the representation of the

Members of Parliament and of the State Legislature.

Chairpersons of the panchayat at the village level have to

be elected in such manner as the State legislation may

provide while the chairpersons of the panchayat at the

intermediate level or district level are to be elected by

and from amongst the elected members thereof.

15. Article 243-D makes provision for reservation of seats

for the Scheduled Castes, Scheduled Tribes including women

belonging to Scheduled Castes/Scheduled Tribes and also for

other women in the panchayats at all the levels. Article

243-E provides for the term of the panchayat which is five

years. Article 243-F provides for disqualifications for the

membership of the panchayat. Article 243-G speaks of powers

functions and responsibilities of the panchayat to be

determined by the legislature of the State. It states that

the legislature of a State may by law endow the panchayats

with such powers and authority as may be necessary to enable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 26

them to function as institutions of self government and such

law may contain pro. visions for the devolution of powers

and responsibilities upon panchayats at the appropriate

level, subject to such conditions as may be specified

therein with respect to [a] the preparation of plans for

economic development and social justice; and [b] the

implementation of schemes for economic development and

social justice as may be entrusted to them including those

in relation to the matters listed in the Eleventh Schedule.

The Eleventh Schedule mentions as many as 29 matters some of

which are necessary to be enumerated here to point out that

it is only a financially and administratively viable unit

which can undertake the schemes of development relating to

them. They are: [1] Minor irrigation, water management and

watershed development, [2] Social forestry and farm

forestry, [3] Small scale industries, including food

processing industries, [4] Khadi, village and cottage

industries, [5] Rural housing, [6] Roads, culverts, bridges,

ferries, waterways and other means of communication, [7]

Rural electrification, including distribution of

electricity, [8] Nonconventional energy sources, [9] Poverty

alleviation programme , [10] Education, including primary

and secondary schools, [11] Technical training and

vocational education, [12] Markets and fairs, [13] Health

and sanitation, including hospitals, primary health centres

and dispensaries, [14] Women and child development [15]

Social welfare, including welfare of the handicapped and

mentally retarded and [16] Welfare of the weaker sections,

and in particular of the Scheduled Castes and

261

the Scheduled Tribes.

16. Article 243-H speaks of power that the State

legislature may give to the panchayats to levy, collect and

appropriate taxes, duties, tolls and fees and also of

assigning such of them as arc levied and collected by the

State Government, to provide for grants-in-aid from the

Consolidated Fund of the State and also to provide for the

constitution of Funds for crediting all moneys received,

respectively by or on behalf of the panchayats and for the

withdrawal of the moneys therefrom. Article 243-1, among

others, provides for the constitution of Finance Commission

by the Governor of the State to review the financial

position of the panchayats at the end of every five years.

Article 243-J requires the State to make law to make pro-

vision with respect to the maintenance and auditing of the

accounts of the panchayats.

17. Article 243-K provides for a State Election Commission

to conduct, supervise, direct and control the elections in-

cluding the electoral rolls. Article 243-0 states that the

validity of any law relating to the delimitation of

constituencies or the allotment of seats to such

constituencies made or purporting to be made under Article

243-K, shall not be called in question in any court, and no

election to any panchayat shall be called in question except

by an election petition presented to such authority and in

such manner as is provided for by or under any law made by

the Legislature of a State. It is in the light of the

aforesaid provisions of the Constitution that we have to

examine the provisions of the State Act.

18. As stated earlier the State enactment, viz, the U.P.

Panchayat Raj Act, 1947, has been amended and brought upto

date to bring it in conformity with the amended provisions

of the Constitution, viz., Article 243 to Article 243-0.

Section 2 [g] of the Act accordingly defines 'Gram Sabha' to

mean a body established under Section 3 of the Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 26

consisting of persons registered in the electoral rolls re-

lating to a village comprised within the area of a gram

panchayat, and 'gram panchayat' has been defined under

Section 2 [h] to mean the gram panchayat established under

Section 12 of the Act. Section 2 [hh] of the Act defines

Finance Commission to mean the Finance Commission

constituted under Article 243-1. Section 2 [hhh] defines

'Kshettra Panchayat' which is the panchayat at the

intermediate level, and it has the same meaning as is

assigned to it under clause [6] of Section 2 of the Uttar

Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam,

1961 whereas 'Zila Panchayat' which is the district level

panchayat will have the meaning assigned to it under the

said Adhiniyam by clause [11] of Section 2 thereof Section 2

[kk] defines 'State Election Commission' to mean the State

Election Commission referred to in Article 243-K of the

Constitution.

19.Section 2 [t] of the Act defines 'village' to mean any

local area recorded as a village in the Revenue record of

the district in which it is situate and includes any area

which the State Government may, by general or special order,

declare to be a village for the purpose of the Act.

20. Section 3 of the Act provides for the establishment of

Gram Sabha for a village or a group of villages by such name

as may be specified. It also states that where the gram

sabha is established for a

262

group of villages, the name of the village having the

largest population, shall be specified as the name of the

gram sabha.

21. Section 5-A gives the disqualifications of a person

from being chosen as and for being a member of grain

panchayat. Section 6 states that a member of the gram

panchayat shall cease to be such member if his name is

deleted from the electoral roll of the constituency.

Section 9 states that for each territorial constituency of a

gram sabha an electoral roll shall be prepared in accordance

with the provisions of the Act under the superintendence,

direction and control of the State Election Commission and

that it shall be published in the prescribed manner and

shall, subject to any alteration, addition or modification-

made under or in accordance with the Act, be the electoral

roll for the territorial constituency concerned. It also

gives the qualifications for being an elector and states

that every person who is not less than 18 years of age on

the first day of January of the year in which the electoral

roll is prepared, will be entitled to be registered in the

electoral roll for the territorial constituency. It is not

necessary to refer to the other provisions of the said

section regarding the qualifications, except to sub-section

11 thereof which states that the State Election Commission

may for the purposes of preparation of the electoral roll

for a territorial constituency adopt the electoral roll for

the Assembly constituency prepared under the Representation

of the People Act, 1950 for the time being in force so far

as it relates to the area of that territorial constituency.

Section 9-A provides that a person whose name is entered in

the electoral roll for the territorial constituency is

entitled to in any election and is eligible for election

nomination or appointment to any office in the gram

panchayat. However, a person who has not completed the age

of 21 years shall not be qualified to be elected as a member

or office bearer of the gram panchayat.

22. Section 11 provides for the meetings and functions of

gram sabha. Subsection [3] thereof speakers of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 26

functions of gram sabha which, among others, consist of

considering [a] the annual statement of accounts of the gram

panchayat, the report of administration of the preceding

financial year and the last audit note and replies, if any,

made thereto, [b] the report in respect of development

programmes of the Gram Panchayat relating to the preceding

year and the development programmes proposed to be under-

taken during the current financial year; [c] the promotion

of unity and harmony among all sections of society in the

village, [d] programmes of adult education within the

village, and [e] such other matters as may be prescribed.

Sub-section [5] thereof requires gram sabha to perform the

functions of [a] mobilising voluntary labour and

contributions for the community welfare programmes; [b]

identification of beneficiaries for the implementation of

development schemes pertaining to the village; and [c]

rendering assistance, in the implementation of development

schemes pertaining to the village.

23. Section 11-A provides for Pradhan and Up-Pradhan of

gram panchayat who are to be, chairperson and vice-

chairperson respectively thereof under the Act. It also

provides for reservation of offices of Pradhans for the

Scheduled Castes, Scheduled Tribes and the backward classes.

Section 11-B provides for the direct election

263

of Pradhan or chairperson by the electorate in the panchayat

area from amongst themselves. Section 11-C provides for

election of Up-Pradhan by the members of the gram panchayat

from amongst themselves. The term of both the Pradhan and

Up-Pradhan is co-terminus with that of the grain panchayat.

24.Section 11-F provides for declaration of panchayat area

and states that the State Government may by notification de-

clare any area comprising a village or group of villages

having so far as practicable, a population of 1000 to be a

panchayat area by such name as may be specified. The first

proviso to the said section, however, states that for the

purposes of declaration of a panchayat area no revenue

village or any hamlet thereof shall be divided. The second

proviso makes a provision for the hill districts of the

State and states that if a village or group of villages does

not have population of 1000, the State Government may

declare the area within a radius of 5 kms. from the centre

of the village to be panchayat area though such area may

have a population of less than 1000. Sub-section [2] of the

said section also gives power to the State Government to

modify the panchayat area or to alter the name of the area

or to declare that any area shall cease to be a panchayat

area on the request of a gram panchayat concerned or

otherwise.

25.Section 12 provides for the establishment of gram

panchayat for every panchayat area. Section 12 [1] (c)

states that the grain panchayat shall consist of a panchayat

and in case of a panchayat area having a population of [1]

one thousand, the panchayat will have nine members, [ii]

where the population is more than one thousand but not more

than two thousand,it will have eleven members, [iii] when

the population is more than two thousand but not more than

three thousand, it will have thirteen members; and [iv] when

the population is more than three thousand, it will have

fifteen members. Thus Section 12 [1] [c] read with Section

11-F-[1], gives a parameter of the size of the panchayat

area mainly on population basis in the non hill areas and on

geographical basis in the hill areas and provides that there

shall be a panchayat of a Pradhan and nine members for at

least every village in the non hill area having a population

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 26

of 1000, and of even less in the hill area. The territorial

constituencies for election as members to the gram panchayat

are to be formed in such a manner that the ratio between the

population of each constituency and the number of seats

allotted to it, shall so far as practicable, be the same

throughout the panchayat area. Each territorial constitu-

ency of a gram panchayat is to be represented by one member

in the gram panchayat. Not less than 1/3rd of the scats

earmarked for Scheduled Castes, Scheduled Tribes and

backward classes under sub-section [5] (a) are to be

reserved for the women of those categories whereas not less

than 1/3rd of the total number of scats in the gram

panchayat shall be reserved for women.

26.The superintendence, direction and control of the conduct

of the election to the office of the Pradhan and Up-pradhan

or a member of the gram panchayat is entrusted by section

12-BB to the State EIection Commission. An application for

questioning the elections is to be made to such authority as

may be prescribed. Section 12. I bars the jurisdiction of

civil 'courts to question the legality of any action taken

or any decision given by an officer or author-

264

ity. Section 14 provides for the removal of Pradhan and Up-

Pradhan in certain circumstances. Section 15 mentions, as

many as 30 functions of gram panchayat which are of the same

pattern as those mentioned in the Eleventh Schedule of the

Constitution, to some of which we have made a reference

earlier. The only additional function entrusted under the

Act is of the preparation of plan for economic development

of the area of the Gram Panchayat.

27. Section 15A requires the gram panchayat to prepare every

year a development plan for the panchayat area and to submit

it to the Kshettra panchayat concerned and Section 16 makes

provision for assigning to it any or all die following func-

tions, viz., [a] management and maintenance of a forest

situated in the Panchayat area; [b] management of

wastelands, pasture lands or vacant lands belonging to the

Government situated within the Panchayat area, [e]

collection of any tax or land revenue and maintenance of

related records. Section 17 refers to the powers of gram

panchayat as to public streets, waterways and other matters.

Section 18 provides for the improvement of sanitation. Sec-

tion 19 provides for maintenance and improvement of schools

and hospitals. Section 20 provides for establishment of

primary school, hospital, dispensary, road or bridge for a

group of gram panchayats. Section 24 provides for power of

a gram panchayat to contract for collection of taxes and

other dues. Section 25 gives power to the gram panchayat to

appoint such staff as may be necessary. Section 32 provides

for the constitution of a Gaon fund for each gram panchayat.

Section 32-A gives power to the State Government to consti-

tute a Finance Commission. Section 34 states that all

properties situated within the jurisdiction of a gram

panchayat shall vest in and belong to the gram panchayat.

Section 36 gives power to the gram panchayat to borrow money

whereas Section 37 gives it power to levy taxes and fees.

It is not necessary to refer to other provisions of the Act

for our purpose.

28.We may now refer to the criticism by the High Court of

certain provisions of the Act as being ultra vires the

Constitution.

29.As stated earlier, the main thrust of the High Court's

judgment is against the concept of 'Village' as incorporated

in the definition of "village" in Section 2 [t] of the Act.

The High Court has found fault with the said definition on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 26

two counts. According to it, firstly, Section 2 [t] is in-

consistent with the concept of village as contemplated by

Article 243 [g] of the Constitution and secondly, whereas

the said Article requires the Governor of the State to

specify the village, Section 2 [t] gives the power to the

State Government to declare it,

30.As regards the alleged difference in the definition of

"village" in the Act and in the Constitution, we have

already referred to the fact that Article 40 of the

Constitution does not define 'village' as such. It only

refers to the Organisation of "village panchayats" as units

of self-government.

31.'Village' has been defined in the Shorter Oxford English

Dictionary [1993 Edition] to mean "a self-contained group of

houses and associated buildings, usu. in a country area-, an

inhabited place larger than a hamlet and smaller than a

town;... a small self-contained district or community

265

within a city or town, regarded as having features

characteristic of a village". The Law Lexicon by P.

Ramanatha Aiyar [1987 Ed.] states that 'village' includes

[a] a village-community; [b] village-lands; [c] rivers

passing through or by village-lands; and [d] a group of

villages. The expression 'village' connotes ordinarily an

area occupied by a body of men mainly dependent upon

agriculture or occupations subservient thereto. When the

area is occupied by persons who are engaged mainly in

commercial pursuits, rural areas in the vicinity of a town

grow into a suburb of the town.

32. The Encyclopedia Americana [1983 Ed.] [Vol. 28] states

that village is

"a type of community, generally small but

without exact or commonly accepted size

limits. Generally, in the United States, the

village is thought to be intermediate between

the hamlet [a settlement with several families

and some form of commerce but no more than 50

people] and the town [generally over 1,000

people].

Dealing with the origin and evolution village, it states

that-

"the village is the typical form of rural

settlement in most of the world in Europe

[except for Great Britain] 'in Asia, in

Africa, and in much of South America..... It

often seems to be the result of the settlement

of lands that previously were only thinly

occupied by indigenous populations, but

probably also derives from the emergence of

clear-cut private proprietorship of land. In

much of Europe and in many other areas of the

world, communal land ownership prevailed in

the past, and this property arrangement was

one basis for the village form of rural

settlement, the community being set amid the

tillage and grazing lands."

x x x x

" Growing awareness of the nearly universal

appearance of the agricultural village

prompted many social theorists in the 19th

century to suggest that such Communities

represented a universal stage in human

evolution. Such simplifying theories lost

support as evidence of the great diversity of

human cultures and the Paths of change was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 26

accumulated. The interpretation of the

village pattern is now more nearly a

functional one. With settled agriculture,

village orientation provides mutual

protection, sociability, a measure of economic

specialisation [such as handicrafts], and at

least the of local government.

Since size-limits will not precisely

distinguish villages from other types of

communities, the question arises as to whether

the term has a precise All communities or

settlements called villages in popular

language or technical studies cannot be

brought within a common definition....

Generally, however, a village isa residential

and trading center for a predominantly

agricultural its social controls are

predominantly traditional and informal; more

formal administration and government arc typi

-

cal of cities and towns. Its self-sufficiency

may be nearly complete, as in some parts of

the Far East and Latin America, or seriously

impaired by modem tranportation,

communication, and agencies of central

government. The population of the village,

unlike that of most cities and many towns, is

self-recruited rather Om immigrant. This, and

the traditional informality of social

standards and controls, lends a distinct

quality of homogeneity that the more

cosmopolitan center does

266

not have.

The collapse of the theory that the village is

the basic community of all civilizations did

not end the idealization of the village. Yet

even the informal and traditional social

controls of the village can be extremely

restrictive, certainly more so than the fomal

tolerance of difference that the cultural

heterogeneity of the city encourages or

requires. And it cannot be assumed that

villages are democratic. European villages

are often dominated by one or a few families,

some of which may claim descent from feudal

rulers. The village in India is often ruled

by a council [panchayat] of the leading caste

or by a few principal landlords. Even in the

United States, with its short history and

absence of an officiallyu recognized

aristocracy, leading families am more likely

to receive deference in villages than in

larger and more impersonal communities. The

integration of village life, or lack of social

problems and tensions, has also been ex-

aggerated. Conflicts may smolder or burn

brightly, all the more because the parties

know each other and personalize the antipathy.

In Europe and Asia, the village has exhibited

a remarkable power of survival amidst currents

of rapid social change. Rural America has

been much more profoundly affected bythe

encroachments of an urban-industrial

civilization. Many small towns, technically

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 26

villages, have virtually di--appeared as their

economic and other social functions have been

absorbed by nearby cities. Village life may

endure a while longer in the United States,

but the sense of continuity and communal in-

tegrity are difficult to maintain with high

rates of residential mobility and in the face

of steady inroads of an essentially urban

civilization.

The village community may be defined as a

group of people who live ill permanent

dwellings in a defined territory which

includes arable land sometimes held in common

.

If cattle is kept, as is often the case, it is

pastured on non-cultivated meadowland over

which the community claims right. Further

characteristics include a predominance of ag-

ricultural occupations, a close relationship

to the natural environment, strong internal

cohesion, and a relative absence of internal

stratification and of occupational,

territorial, and vertical social mobility. As

such, the village is a specific type of rural

settlement, but not the only One.

x x x x x

The scientific study of the village community

did not start until the middle of the 19th

century...... Sir Henry Maine [1822-1888], one

of the first English writers on this topic,

held the theory that the village community was

originally founded by a group of kin related

people who settled independently in a

specified spot. In time, the original

households branched out into many separate

ones, clearing more load as the need arose.

Occasionally they included strangers, who were

sometimes adopted but more often relegated to

second class membership, tolerated rather that

accepted. If one family became extinct, its

share of land was returned to the common

stock. Only in later times, under pressure of

more highly developed political structures,

did the village community become feudalistic.

the land was then owned by a ruler who

received tribute in kind and promised

protection in return. Often the

responsibilities of supervision and collection

were transferred to other members of the

aristocracy. Maine based his case for this

presumed development upon analysis of Roman

law [Ancient Law, 1861] and upon practices in

Russia, southeastern European countries, anti

specifically India, where he had carried out

extensive field research [Village com

267

munities in the East and West, 1871].

Several other scholars criticized Maine's

theoretical reconstructions-Modern

anthropologists and sociologists take the

position that both developments took place.

They recognize that the evolution and

structure of human settlements in

general, and of village unities in particular,

are closely connected with specific historical

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 26

developments and ecological, sociopolitical,

economic and religious circumstances which are

different from place to place. With this

recognition, questions of absolute origins

have generally been replaced by an increased

interest in the structure and function of

village communities, in an attempt to gain

a

basic understanding of the essential nature of

living arrangements therein.

x x x x x

As their characteristic features, peasant

villagers show strong internal cohesion and

tendencies to restrict membership to those

born within the community. Rules of local

endogamy sometimes reinforce this trend.

Membership in the community is demonstrated by

participation in religious rituals, which

frequently stress the power of the community

to deal with the supernatural rather than

reliance upon individual piety. Economically,

a peasant produces mainly for his own

household's consumption, although he also uses

part of his product to exchange in a market

for other goods and services. These markets

are often local and differ in structure from

those in the cities. Although some city-

produced goods reach the peasant level, there

is a tendency to limits the flow of city goods

into the community.

Politically, peasant villages are now usually

parts of national states and theoretically

possess the rights and duties involved in such

membership. But the village community has

frequently retained mechanisms of internal

control, whether through government-approved

local leadcis or through informal leadership

and community sanctions. Emotional attach-

ments face inward. The individual's first

loyalty is to his family, the to his com-

muaity, and only then to whatever is beyond.

The various elements of this characterization

may be developed more strongly in some

villages than in others, but as a type they

are recognizable and clearly distinct from

tribal groups, farming settlements, and city

formations. "

33. It is common knowledge that the needs of the people

change with the development in the economic, scientific and

technologic fields as also with the developments in

transport and communication. With them, the concept of

selfsufficiency and the means, mode and range of self-

governance also change. What is more, the units of self-

governance at the lower level being interrelated and inte-

grated with those at the higher levels as parts of the whole

scheme of administration and development in the State, have

to respond to and fall in line with the growth in the size

and operation of the units at the higher level to form a

coordinated democratic polity and administrative machinery.

The concept of grassroot or lowest level administration

must, therefore, necessarily change with the advance and

progress at other levels. The governing units at all levels

have to fit in in a pattern, and a scheme for administration

both for law and order and economic growth. They have to

act as vehicles of overall stability and progress. For that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 26

purpose, their constitution and functioning have to be in

conformity with the larger social, political and economic

goals.

34. Hence there cannot be any immu-

268

table social, political, economic or 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, biases and prejudices, and is

shackled by 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 physical and mental

barriers. As stated earlier, 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. There is

further nothing in the Mahathma Gandhi's advocacy of

"village panchayat raj" from which the High Court has taken

support to suggest that the village that Mahatmaji had in

mind was of a particular description or dimension. It is

amusing in this respect to note that the High Court in

support of its concept of village has even gone to the

extent of observing that "it must be remembered that in con-

sidering the aspirations of the people, more so at the first

level of democracy, the phenomena of a case of identity of

the people, their sentiments, feelings and chauvinism,

cannot be forgotten" the considerations which were, with

respect, farthest from the mind of Mahathmaji and against

which he fought throughout his life. If separate

identities, chauvinism, divisible sentiments and feelings

arc nurtured from the grassroot level, they are bound to

erode the foundation of the unity and integrity of the coun-

try 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. 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 necessarily conducive to social and economic

progress. On the other hand, they may prove and have in the

past proved a positive hindrance to them. Although,

therefore, it is true that most of the villages have

developed with the initial settlement of a family or a group

of families belonging to either the same tribe or ethnic

group and in that sense have their historical and

sociological identity, these identities are not necessarily

healthy or desirable for promoting wider and diverse

interests and attaining larger goals. On the other hand,

they often prove insurmountable blockades to promoting the

ideals enshrined in the Preamble of our Constitution, viz.,

social, political and economic justice; liberty of thought

and expression, belief, faith and worship; equality of

status and of opportunity; and fraternity assuring the

dignity of the individual and the unity and integrity of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 26

nation. Sometimes, smaller the social, political and

administrative entities, the greater the dominance of one

section or the other and deeper the prejudices. The need is

to organise viable social, political, economic and

administrative units of optimum size

269

at the lowest level on a rational basis keeping in mind the

size of population, the needs of social and economic

development, availability of resources, the transport and

communication facilities, convenience of administration and

other relevant factors. Old is not always gold and mere

historic accidents through which the villages of the concept

of High Court have developed, cannot justify their perpetua-

tion as political and administrative units to attain the

modem goals of social and economic progress or furnish the

rationale for their survival as basic democratic entities.

What is further forgotten is that 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 while

others survive much below the poverty line. At the same

time, some have emerged as small pockets o 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 involved in the exercise which must have a

rational relation to the result sought to be achieved. In

the State o U.P., there are 1,20,000 villages. Before the

present exercise of constituting the village panchayats

under the Act, there were 74,000 gram sabhas which are now

reduced to 55,000. With the nature and range of functions

entrusted to the new village panchayats under 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 (1) 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 kilometres

radiusdistance, has in fact tried to observe the principle

of self-governance as closely as possible.

35. The first premise of the High Court's reasoning is,

therefore, faulty and it has led it to build an edifice

which is equally defective. It is for this reason that we

arc unable to appreciate the portions of the impugned

judgment dealing with the sentiments, feelings, chauvinism

and will of the people [pages 16-201; holding that power to

specify villages vests with the people and not with the

State Government and that the villages cannot simply be a

revenue village [pages 21 to 25]; holding that the Governor

is obliged to specify a village giving due regard to the

wishes of the people [pages 26-27]; holding that provisions

of the Act referring to establishment of Gram Sabha for a

group of villages are ultra vires, and beyond the intention

of the Constitution [pages 3233]; that status of Gram Sabha

has been compromised and belittled in the Act itself [pages

37-381; holding that the Act in explaining the expression

'gram sabha' offends the Constitution and negates the con-

cept of local self-government [page 40]; and stating that

Section 11-F gives rise to misunderstanding as it has scope

for overlapping and duplication in notifying and declaring

areas comprising a village or group of villages into

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 26

panchayat area [pages-59].

36. As pointed out above, Article 243 [g]

270

of the Constitution defines village to mean "a village

specified by the Governor to be village and includes a

group of villages so specified". In other words, according

to this definition, any existing village or a group of the

existing villages may be specified by the Governor as a

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 district,% in which

they are situate. No material has been placed on record to

show that villages have been recorded as such in any other

record. There may be some villages and new settlements

which are not so recorded. There is, 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

"revenue village" is, therefore, a documented ready-made

concept of village and the Governor while acting under Ar-

ticle 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 villages

as a village. If this is so, we are unable 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 purposes of the Act. The concept of

village is not foreign either to the Constitution or to the

State legislation. Apart from the U.P. Land Revenue Act,

the concept of village finds place in other State enactments

such as U.P. Village and Road Police Act, 1873 and U.P.

Village Sanitation Act, 1892, U.P. Village Courts Act, 1892,

U.P. Village Panchayats Act, 1920 which was replaced by the

unamended U.P. Panchayat Raj Act, 1947, U.P. District Boards

Act, 1922, U.P. Local Rates Act, 1914 which latter two Acts

were replaced by the U.P. Kshettra Samities and Zila

Parishads Adhiniyam, 1961. If, therefore, there is no

restriction placed by the Constitution on the Governor in

accepting any inhabited rural are as a village, it is

difficult to appreciate how the Act is violative of the

Constitution when the State Government 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.

37. As regards the objection of the High Court that whereas

Article 243 [g] requires the Governor to specify the

village, the Act gives this power to the State Government to

do so, the High Court has failed 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 func-

tions in his discretion. In this connection, we may refer

to the provisions of Article 163 of the Constitution which

state that there shall be a Council of Ministers with the

Chief Minister at the head to aid and advise the Governor in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 26

the exercise of his

271

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. Under the Constitution, therefore, while exercising

the non-discretionary functions, the Governor cannot act

without the aid and advice of the Council o Ministers. To

do so will cut at the very root of the cabinet system of

Government we have adopted. In this connection, we may

refer to the decision of this Court in Samsher Singh v.

State of Punjab [(1974) 2 SCC 831] where the Constitution

Bench of seven learned Judges has held that the executive

power of the State is vested in the Governor under Article

154 [1] of the Constitution. The expression 'State' occurs

in Article 154 [1] to bring out the federal principle

embodied in the Constitution. Any action taken in the

exercise o the executive power of the State vested in the

Governor under Article 154 [1] is taken by the Government of

the State in the name of the Governor as will appear in

Article 166 [1]. There arc two significant features in

regard to the executive action taken in the name of the

Governor. First, Article 300 states, among other things,

that the Governor may sue or be sued in the name of the

State. Second, Article 361 states that proceedings may be

brought against the Government of the State but not against

the Governor. The reason is that the Governor does not

exercise the executive functions individually or personally.

Executive action taken in the name of the Governor is the

executive action the State. Paragraph 48 of the said judg-

ment explains the position of law in that behalf succinctly

as follows:

"The President as well as the Governor is the

constitutional or formal head. The President

as well as the Governor exercises his powers

and functions conferred on him by or under the

Constitution on the aid and advice of his

Council of Ministers, save in spheres where

the Governor is required by or under the

Constitution to exercise his functions in his

discretion. Wherever the Constitution

requires the satisfaction of the President or

the Governor for die exercise by the President

or the Governor of any power or function, the

satisfaction required by the Constitution i

s

not the personal satisfaction of the President

or Governor but the satisfaction of the

President or Governor in the constitutional

sense in the Cabinet system of Government,

that is, satisfaction of his Council of

Ministers on whose aid and advice the

President or the Governor generally exercises

all his powers and functions. The decision of

any Minister or officer under Rules or Busi-

ness made under any of these two Articles 77

[3] and 166 [3] is the decision of the

President or the Governor respectively. These

articles did no provide for any delegation.

Therefore the decision of a Minister or office

under the Rules of Business is the decision of

the President or the Governor. "

38. Admittedly, the function under Article243 [g] is to

be exercised by the Governoron the aid and advice of his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 26

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 Coun-

cil of Ministers as the case may be. When the Constitution

itself thus equates 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

272

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 Governor which definition

is in conformity with the provisions of the Constitution.

We are, therefore, unable to appreciate the conclusion of

the High Court that Section 2 [t] is ultra vires Article 243

[g] of the Constitution.

39. We are also unable to appreciate the reasoning of the

High Court that under the Act the State Government cannot

declare the village by special or general order as required

by Section 2 [t] because Article 243 [g] of the Constitution

requires the Governor "to specify the village by a public

notification". 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, 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. We have already pointed out that

in view 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 arc 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 Governor.

40. In the present case, by the notification dated 9th May,

1994 issued under Section 96-A of the Act by die Governor,

the 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 [hereinafter referred to as the

`Director']. Pursuant to this delegation, on 4th August,

1994 the Director issued notification establishing gram

sabhas under Section 3 and declaring panchayat areas under

Section 11-F of the Act. This was a composite notification

both for establishing gram sabhas and declaring panchayat

areas. It is true that neither in the notification dated

9th May, 1994 delegating powers under Sections 3 and 11-F to

the Director nor in the notification dated 4th August, 1994

establishing grain sabhas and declaring the panchayat areas,

there is a mention either of Section 2 [t] of the Act or of

the power delegated to declare the village under the said

provision, However, keeping in mind the scheme of the Act

and the provisions of Sections 2 [t], 3 and 11-F, it is clew

that Section 2 [t] merely defines 'village' and by itself

does not give power to the State Government to declare the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 26

village. It states that village means "any local area

recorded as a village in the revenue records of the district

in which it is situate and includes any am 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

273

part, it adopts the villages recorded in the revenue records

of the districts as villages for the 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 of the Act. The legislature, probably rightly

thought that since the power given to the State Government

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 purposes of the

Act. It cannot be said that this view of the State Govern-

ment is wrong for it is not possible to establish a gram

sabha 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 is issued on 4th

August, 1994 further shows that the gram sabha which is

inappropriately tided as gram panchayats are established for

villages within the meaning of Section 2 [t] and they com-

prise the area either of one revenue village or of more

revenue villages than one. Although, 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 may be justified in that they do

not refer to Section 2 [t] and the latter notification has

given inappropriate tides in columns 2 and 3 thereof,

according to us, for the reasons stated above, the said

defects do not in any way affect the legality of the said

notifications. All that can be said in that connection is

that they could have been 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 we are more than satisfied,

that the two notifications are in substantial compliance

with the provisions of the Act and have to be construed as

such.

41.We also find no merit in the contention that the first

part of Section 2 [t] which defines village to mean any

local area recorded as a village in the revenue records of

the district in which it is situate, goes counter to the

provisions of Article 243 [g] in that it forecloses the au-

thority 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 for the purpose. As pointed out

earlier, the notification issued by the Governor is 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. What is further, the Act

has received the assent of the Governor on 22nd April, 1994.

Hence, there is not only no conflict between the provisions

of Sections 2 [t] of the Act and those of Article 243 [S]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 26

but there is an over-compliance with the provisions of the

Constitution.

42.The High Court has also held that there is a substantial

difference between the definition of 'gram sabha' in Article

243 [b] of the Constitution and in Section 2 [g] of the Act

and, therefore the

274

latter definition is ultra vires the provisions of the

Constitution. Frankly, we have been unable to understand

the reasoning of the High Court in that behalf Article 243

[b] of the Constitution defines 'gram sabha' to mean "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 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 has taken

exception to the word 'established' in Section 2 [g] of the

Act. It must be remembered in this connection that 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

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 far as gram sabha is concerned. What 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

constitution is called establishment is immaterial. Thes`

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. We, however, do not see how the use of

the said expression makes any difference to the intendment

of the said provision and how the said provision goes

counter to the provisions of the Constitution. Surely, it

is not suggested that the grain sabha that the Act seeks to

establish does not consist of the entire electorate in the

panchayat area or excludes some of it. So long as,

therefore, the definition given in Section 2 [g] and the

provisions of Section 3 of the Act do not in any way detract

from the provisions of Article 243 [b] or their intendment,

they cannot be held ultra vires the provisions of the

Constitution. We are, therefore, unable to agree with the

finding of the High Court in that respect.

43. The High Court has also held that the provisions of

Section 3 of the Act which empower the State Government to

establish a gram sabha for a group of villages by the name

of the village having the largest population would result in

the loss of identity of the village or villages with smaller

population comprised in the gram sabha. The High Court has

committed an obvious error here in that it has identified

the village with the gram sabha and the village panchayat.

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. In that process, they may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 26

also stand to gain inasmuch as they may have access to more

resources, and the benefit from bigger schemes and projects

and availability of better infrastructure and equipment to

implement the projects and schemes. It is

275

not, therefore, possible to agree with the High Court that

the identity of the smaller villages is lost because they

are grouped together for establishing a common gram sabha or

gram panchayat.

44.The High Court has also declared the provisions of

section 2 [11] read with those of Section 11-F ultra vires

the provisions of Article 243 [e], because according to the

High Court, the provisions of the said Article require that

at first, a territorial area should be carved out to make it

the panchayat area and then the population of the area

should be adjusted so as to ensure uniform ratio of

representation as required by Article 243-C. Instead, the

provisions of Sections 2 [11] and 11-F carve out the

panchayat area on the basis of population alone and the

basis for it is conspicuous by its absence in the Act and

this has created confusion. The representation of an area

has to be balanced to the ratio of the population in it and

not the population to the area. Territorial constituencies

are sub-divisions of a panchayat area. A densely populated

area will automatically contain more seats while a sparsely

populated area will contain lesser seats than the densely

populated area and hence the provisions of the Act are ultra

vires the Constitution. We are unable to appreciate the

reasoning of the High Court. Article 243 [e] defines

'panchayat area' to mean "territorial area 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 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 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 as

practicable to be the same throughout the panchayat area.

So long as these conditions are complied with, the

composition of the panchayat that may be evolved by the

State legislature cannot be faulted. We do not see any

material before us to suggest that these two criteria are

breached or arc 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 have a population of 1000 throughout the state; [ii]

for the purpose of the declaration of the panchayat area no

revenue or any hamlet thereof 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 the area

may be less than 1000. When Article 243 [e] defines, the

"panchayat area" to mean the territorial area of panchayat,

it does not require that the panchayat should be constituted

on the basis of the area alone. The High Court has read

otherwise in the said definition and has, therefore, fallen

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 26

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

276

Act, viz., Section 2 [1] read with Section 11-F do no 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 as practicable, the panchayat area gets

automatically demarcated by the areas of the village or

villages comprised therein.

45.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

conformity with the constitutional provisions or without

committing a breach thereof, the courts cannot interfere

with the same. We may, in this connection, refer to a

decision of this Court in The Hingir-Rampur Coal Co, Ltd.

and Others v. The State of Orissa and Others [(1961) 2 SCR

537]. In this case, the petitionermine owners, had among

others, challenged the method prescribed by the legislature

for recovering the cess under the Orissa Mining Areas

Development Fund Act, 1952 on the ground that it was un-

constitutional. The majority of the Bench held that the

method is a matter of convenience and, though relevant, has

to be tested in the light of other relevant circumstances.

It is not permissible to challenge the vires of a statute

solely on the ground that the method adopted for the

recovery of the impost can and generally is adopted in levy-

ing a duty of excise.

46.What is more objectionable in the approach of the High

Court is that although clause (a) of Article 243-0 of the

Constitution enacts a bar on the interference by the courts

in electoral matters including the questioning of the

validity of any law relating to the delimitation of the

constituencies or the allotment of seats to such

constituencies made or purported to be made under Article

243-K and the election to any panchayat, the High Court has

gone into the question of the validity of the delimitation

of the constituencies and also the allotment of seats to

them. We may, in this connection, refer to a decision of

this Court in Meghraj Kothari v. Delimitation Commission &

Ors. [(1967) 1 SCR 400]. In that case, a notification of

the Delimitation Commission whereby a city which had been a

general constituency was notified as reserved for the

Scheduled Castes. This was challenged on the ground that

the petitioner had a right to be a candidate for Parliament

from the said constituency which had been taken away. This

Court held that the impugned notification was a law relating

to the delimitation of the constituencies or the allotment

of seats to such constituencies made under Article 327 of

the Constitution, and that an examination of sections 8 and

9 of the Delimitation Commission Act showed that the matters

therein dealt with were not subject to the scrutiny of any

court of law. There was a very good reason for such a

provision because if the orders made under sections 8 and 9

were not to be treated as final, the result would be that

any voter, if he so wished, could hold up an election

indefinitely by questioning the delimitation of the

constituencies from court to court. Although an order under

Section 8 or 9 of the Delimitation Commission Act and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 26

published under Section 10 [1] of that Act is not part of an

Act of Parliament, its effect is the same. Section

277

10 [4] of that Act puts such an order in the same position

as a law made by the Parliament itself which could only be

made by it under Article 327. If we read Articles 243-C,

243-K and 243-0 in place o Article 327 and sections 2 [kk],

11-F and 12-BB of the Act in place of Sections 8 and 9 of

the Delimitation Act, 1950, it will be obvious that neither

the delimitation of the panchayat area nor of the con-

stituencies in the said areas and the allotments of seats to

the constituencies 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

been entertained after the notification for holding the

elections was issued. The High Court not only entertained

the challenge but has also gone into the merits of the

alleged grievances although the challenge was made after the

notification for the election was issued on 31st August,

1994.

47.While supporting the judgment of the High Court, the

respondents raised some additional contentions. The first

contention was that it was not competent for the State

Government under Section 96-A of the Act to delegate its

power to the Director, the delegation being in contravention

of the provisions of Article 243 [g] of the Constitution.

We have pointed out earlier that 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

in accordance with the Constitution. Hence by virtue of

Article 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 96A thereof for the State Government to delegate all

or any of its powers under the Act to any officer 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. We have already pointed out

that the power delegated under Sections 3 and 11-F of the

Act would impliedly include the power to declare "village"

under Section 2 [t] of the Act although the said section is

not mentioned in the notification specifically. Hence we do

not see any substance in this contention either.

48.A part of the aforesaid contention was that the Director

by his Circular dated 12th May, 1994 had delegated the func-

tion of delimiting the panchayat areas to the District

Magistrates of various districts which he could not have

done since Section 96-A does not permit sub-delegation of

the powers given by the State Government. We are afraid

that this contention results from the incorrect appreciation

of the contents of the said Circular. By the said Circular,

the Director had only asked the District Magistrates to do

the ministerial work of submitting the proposals for re-

organisation of grain panchayats according to the guidelines

given in the Circular which were in terms of the provisions

of the Act. Those proposals were to be finally processed by

die Director himself and that is what the Director

ultimately did as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 26

278

he himself took the final decision with regard to the

reorganisation of the existing gram panchayats constituted

under the unamended Act and delimited the panchayat areas.

In the circumstances, there is no merit in the contention.

49. The second contention raised on behalf of the

respondents was that the delimitation of the panchayat areas

and gram sabhas was done without giving adequate

opportunities of being heard to the people in the areas

concerned. The lists of gram panchayats were published from

20th to 26th August, 1994 and objections were heard and

disposed of on 27th and 28th August, 1994 and the final

lists of the panchayat areas and gram sabhas were published

on the 31 st August, 1994. While it was conceded on behalf

of the State Government that the proposals for delimiting

the panchayat areas were published and finalised as above,

it was pointed out on their behalf that this was done bona

fide to complete the elections on time and without any

ulterior motive, since the State Government was racing

against time to meet the deadline set by the Centre to con-

stitute the new panchayats. However, during the hearing of

the writ petitions before the High Court, the State

Government had in its counter-affidavit voluntarily offered

to remove the said grievances and invite the objections

afresh and finalise the delimitation of the panchayat areas.

However, no order was passed on the said offer by the High

Court. Subsequently, the State Government on it,; own

cancelled the notification of election dated 31st August,

1994 to meet the said grievances of the writ petitioners,

i.e., the respondents herein. However, in view of the

letter dated 12th November, 1994 received from the Centre,

to which we have already made a reference, threatening to

stop the release of funds, the State Government was com-

pelled to renotify the elections on 26th November, 1994 in

pursuance of which the election process was to commence on

3rd December, 1994. In the meanwhile, on 2nd December, 1994

the impugned judgment was delivered by the High Court.

50. Before us, again, in order to prove its bonafides, the

State Government voluntarily offered to hear the respondents

with regard to their grievances and for that purpose to

cancel the notification dated 26th November, 1994 and

reschedule the election process without prejudice to their

contentions in the appeal. By our interim order dated 9th

February, 1995, we permitted the State Government to cancel

its notification dated 26th November, 1994, to hear the

respondents with regard to their said grievances and to

reschedule the election process. That order of 9th

February, 1995 is reproduced below:

"Pending the decision, we direct as follows:

The Governor may adopt the Notifications

issued by the Director of Panchayat Raj under

Section 3 read with Section 11-F of the Uttar

Pradesh Panchayat Raj Act, 1947 [Act] between

2nd and 5th August, 1994 as his own proposals

for the purpose of specifying villages and

constituting Gram Sabha and Panchayat areas

under the Act. The Governor may thereafter or

simultaneously issue a fresh notice inviting

objections to the said proposals. He will give

at least 10 days' clear time for lodging

objections. He may also nominate officers to

hear the said objections. After the

objections are disposed of final Notification

or Notifications will be issued by the

Governor.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 26

279

The notice inviting objections must be

prominently displayed at least in the offices

of all the Block Development Officers

throughout the period fixed for filing the

objections. In addition, wide publicity to

such notice should be given on T.V., Radio and

in Newspapers having wide circulation in the

areas concerned.

It would not be necessary to give oral hearing

to the objector unless the officer concerned

considers it necessary to do so.

After the final Notification/s is/are issued,

the State Election Commissioner may proceed

with the conduct of the elections. "

51.We understand that the grievances of the people in the

areas have since been heard and the process of election is

underway according to the revised schedule.

52.The above order was passed as stated earlier without

prejudice to the contentions of the State Government that

the notifications issued by the Director under Section 3

read with Section 11-F of the Act between 2nd and 5th

August, 1994 were valid. We have already held that since

the Governor means the State Government, the Legislature

could empower the State Government to delegate all or any of

its powers under the Act to any officer or authority

subordinate to it. This is what the legislature has done by

enacting Section 96A and the State Government in pursuance

of the provisions of the said Section, delegated its powers

to the Director. We have held that both the provision of

Section 96A and the delegation made by the State Government

to the Director under the said provision is valid. Hence,

the notifications in question issued by the Director are

valid. The adoption by the Governor, of the notifications

issued by the Director pursuant to our interim order of 9th

February, 1995 has, therefore, to be deemed to be by way of

abundant precaution, pending the decision on the contentions

raised on behalf of the respondents. The actions of the

Governor pursuant to our interim order, therefore, in no

away reflect adversely on the validity of the notifications

issued by the Director.

53.We must also make it clear that we had passed the interim

order, as stated earlier, pending the decision and without

prejudice to the contentions of the State Government that

the election process once started could not be set at naught

by raising objections on the ground that the delimitation of

the panchayat areas was defective. We have pointed out that

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. We are, in these proceed-

ings, referring to the lacuna in the steps taken by the

State Government to finalise the panchayat areas only with a

view to point out that it was obligatory on the State

Government to hear the objections before the panchayat areas

were finalised. The ratio of the decisions of this Court in

Visakhapatnam Municipality V. Kandregula Nukaraju & Ors.

[(1976) 1 SCR 545], S-L. Kapoor v. Jagmohan & Ors. [(1980)

3 SCC 379], Baldev Singh & Ors. v. State of Himachal Pradesh

& Ors. [(1987) 2 SCC 510], Sundarjas Kanyalal

280

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 26

Bhatija & Ors. v. Collector, Thane, Maharashtra & Ors.

[(1989) 3 SCC 396], and Atlas Cycle Industries Ltd. v. State

of Haryana & Ors. [(1993) Supp. 2 SCC 278] requires that 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. It was not disputed before us that 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, as held in

Visakhapatnam Municipality, S.L. Kapoor, Baldev Singh, S. L.

Bhatija and Atkas Cycles cases, in matters which are urgent

even a post-decisional hearing is a sufficient compliance of

the principle of natural justice, viz., audi alteram

pattern. It is in view of this position in law that the

State Government had offered to hear the grievances of the

writ petitioners before the High Court and before us.

54.We are, therefore, more than satisfied that there were no

mala fide intentions on the part of the State Government in

giving the short time for submitting the objections and for

hearing and disposing them of. We may, however, make it

clew that although, as pointed out earlier, the challenge to

the delimitation of the panchayat areas on the said grounds

could not have been made in the present case after the

election notification was issued, the State Government

should bear it in mind that if and when the next regrouping

of the villages and redetermination of the panchayat areas

is undertaken, the authorities will have to give sufficient

opportunity to the people of the areas concerned for raising

the objections. This is with a view to remove their

grievances, if any, with regard to the difficulties,

inconveniences and hardships, likely neglect of their

interests, domination of certain sections and forces,

remoteness of the seat of administration, want of proper

transport and communication facilities etc. The opportunity

will also provide an occasion for the people to come forward

with suggestions for better and more viable, compact and

cohesive regrouping of the villages for efficient

administration and economic development. The objections are

not to be invited to enable the people to exercise the sort

of a right of self-determination which is sought to be spelt

out by the High Court. The final decision with regard to

the delimitation of the panchayat , after hearing the

objections and suggestions, will, of course, be that of the

State Government acting through the Director.

55.The last contention of the respondents was that the Act

makes provision for the nyaya panchayats whereas the amended

provisions of the Constitution do not direct the

Organisation of such panchayats and, therefore, the Act is

ultra vires the Constitution. The contention is only to be

stated to be rejected. Admittedly the basis of the

organisation of the nyaya panchayats under the Act is

different from the basis of the Organisation of the gram

panchayats and the functions of the two also differ. The

nyaya panchayats arc in addition to the gram panchayats.

The Constitution does not prohibit the establishment of

nyaya panchayats. On the other hand, the Organisation of

the nyaya panchayats will be in promotion of the directive

principles contained in Article 39A of the Constitution. It

is therefore, difficult to appreciate this contention.

56. As pointed out above, the decision

281

of the High Court suffers from errors and has to be set

aside. The appeals, therefore, succeed and are hereby

allowed and the impugned decision of the High Court is set

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 26

aside with costs throughout.

283