RAVI S. DHAVAN, J.

(1) DEMOCRACY at the grass root level is the subject matter of a large number of petitions, all relating to the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as the Act). This Act has been amended by the State legislature after the Constitution of India itself stood amended by the Constitution (Seventy-Third Amendment), Act, 1992, dated 20/04/1994 (hereinafter referred to as the Constitution Amendment Act). Insofar as the Constitutional Amendments were concerned, primarily they related to introducing homogeneous local self-Government at the village level throughout the nation. And yet not ignoring the aspirations of rural India to participate in governing itself at the village level, certain nomenclatures to the administration of democracy at the village level were brought in as a standardised pattern in all the States of the nation. In some parts of India, the basic nucleus of local self-Government at the village was either the Gaon Sabha or the Gram Sabha. These expressions, as they may be understood in generality, in every State, will henceforth be known as the Gram Sabha. To make village planning practical for the purpose of its governance and to remove parochial anomalies from village to village and for better integration of self-rule in rural politics, the village itself became a concept of identity by self-determination. A Gram Sabha became a nucleus of self-determination. More than one Gram Sabha was permitted to come under a broad rural administration, known as a Panchayat Area, with its executive known as the Gram Panchayat. It was earlier called as Gaon Panchayat. Then, there are the village elders all wisemen and sane, collectively called the Nyay Panchayat, discharging grassroot level justice. There were the broad changes which affected the Uttar Pradesh Panchayat Raj Act, 1947, by the Uttar Pradesh Panchayat Raj (Amendment) Act, 1994 (U. P. Act No. 9 of 1994), referred hereinafter as the Amendment Act.

(2) INEVITABLY, since there has to be a link between the past, present and future, the Constitution of India gave broad outlines in the Constitution Amendment Act on the applicability of the existing Act, until then, by permitting the State legislature to legislate by incorporating what the Constitution of India had intended.

(3) TO precipitate local self-Government in the villages as a constitutional obligation, the Constitution Amendment Act itself permitted the constituents of the existing Gaon Sabha, the Gaon Panchayat, the Nyay Panchayat, the Pradhans. Up-Pradhans, etc. to continue for a period of one year with an understanding that the provisions of the Constitution of India will take over after this period of one year draws to a close. A discretion was permitted that the term of the Panchayat could be dissolved sooner by a resolution of the Houses of the Legislatures and then, an election in accordance with the Act, as brought up-to-date by incorporating the spirit of the Constitution of India on these matters, could be held to elect the Panchayats.

(4) HEREINAFTER, it was left to each State to take over the implementation of the concept of local self-Government as a first step democracy in rural India to build a base at the grassroot. The geometry of a Parliamentary democracy from the base of the pyramid to the point was laid. The State of U. P. also attempted to fall in line with the constitutional amendments brought in by amending the Act, initially legislated in 1947. But, while doing so, one thing was clear that the elections had not been announced in accordance with the Constitution of India. The Constitution Amendment Act did not stop the Government in Uttar Pradesh from doing so. Instead, the State of U. P. by a general notification dated 15/04/1994, exercising its powers under the unamended Act, permitted the erstwhile and existing Panchayats, coming to the end of their tenure, to continue in office until 23/04/1995, that is to say, one year more, unless an election was held earlier. 1 And how and in what manner and with what procedure would an election be held to return a new Panchayat This is the theme of these cases. 1notification No. 1972/333-1-94-9 G-89. Lucknow, 15/04/1994 (Annexure 1 to the Supplementary Counter Affidavit, sworn on 23/09/1994).

(5) THE forerunner of the local self-Government with its limitations in the villages in this State, earlier known as the United Provinces, as India was ruled by an Imperial power, was brought by the United Provinces Village Panchayat Act, 1920. This Act was repealed by the U. P. Panchayat Raj Act, 1947, i. e. , the Act. The United Provinces Village Panchayat Act, 1920, had a sting of bring under the yoke, so to say. The Collector could bundle out any official of the Panchayat, whether it was the Panch or the Sarpanch and between the Collector and the Commissioner, they could dissolve any Panchayat for misconduct, neglect of duty or other sufficient cause. And, that was the end of local Government in a particular village and to suspend a Panch or a Sarpanch the order of the Collector was final, and, likewise, between the Collector and the Commissioner, if they had dismissed or dissolved any Panchayat, there was not much one could do about it, except suffer the situation.

(6) THE Act, i. e. the U. P. Panchayat Raj Act, 1947, as of now, under Chapter VIII under the head "external Control", also contains powers, given to the State Government, to dissolve any Gram Panchayat or Nyay Panchayat, if in the opinion of the State Government these bodies have abused their position and continuously fail to perform the duties imposed upon them by or under the Act, or if its continuance is not considered desirable in the public interest. Except, that the Act provides that before such an action is taken, the body of the person concerned will be afforded a reasonable opportunity of showing cause against the action proposed. And, yet in the delegation of powers on who will consider the removal and the dissolution of, for that matter, consider the reply to a show cause notice, yet remains with the State Government. And who may be the State Government Under Section 96a of the Act, it will be the authority which the State Government may delegate with all or any of its power under this Act to any officer, or authority subordinate to it, subject to such conditions and restrictions, as it may deem fit to impose. Even today, the issue remains whether this enactment which, is continuing since 1947, to further local self-Government, could permit further delegation by the State Government to an authority subordinate to it, to put an end to self-Government.

(7) IN practice, in the State of U. P. , this delegation does not go beyond the bureaucat. But, if grassroot democracy is to be checkmeted for any lapse done, they are answerable to the elected representatives of the people. And herein lies the mistrust between the grassroot self-Government at the village level to be answerable to the State Government and not the elected representatives of the people. But, if the Constitution was making a provision that no law, for the time being in force, will have the effect of causing dissolution of Panchayats, at any level, and simultaneously providing for powers, authority and responsibilities to the Panchayats, then, in this regard, reference may be had to Articles 243e and 243g of the Constitution of India. The Constitution never intended to grant immunity to any one from being answerable for all public acts done. In this regard, when the Constitution made a provision that the legislature of a State may, by law endow the Panchayats with the powers and authority to enable them to function as an institution of self-Government, then, it was implied that there had to be a self-contained procedure that if the Panchayat overshoots itself or fails to discharge, now its constitutional obligations, its disorder will give way to a new elected order in the reconstitution of a new Panchayat. The answerability had to be not to a functionary of the Government, but, somebody, or a collective institution taking its sanction from the Constitution of India. The Act has yet to adapt itself to the challenging needs of a local self-Government and Parliamentary democracy oriented to Indian conditions. The Act was drafted when India had dominion status. It has the shadows of the Raj in it.

(8) THE basic issue in all these large number of petitions from all over the State is not that the elections should not be held. This is not anybodys case. But the complaint is that the State Government has not made itself ready for elections. Insofar as the latter aspect is concerned, during the pendency of these writ petitions, since the first of them was filed on 18/08/1994, twice, during the hearing it has been indicated to the Court that the people of the Panchayat areas may return to the respective authorities under the Act, and their grievances shall be heard and again within a time bound schedule. These concessions are on record. This in itself implies that the State Government had not, at any stage, kept itself in readiness to put the villages to elections except announcing the election schedule and, then, modulate the rules of the game while the game was afoot short of the process of elections. During the course of hearing itself, the State Government was framing rules, as none had been framed after the amendments to the Constitution, to facilitate the conduct of elections and between July and till the matters were being heard. A reference to rules has been made even during hearing but the State Government could not produce the Gazettes before the Court. The Gazettes also did arrive but the State Government was finding it difficult to locate them. Even in the counter-affidavit which was filed on behalf of the State Government, what was appended where type-written manuscripts of the notifications and rules. Even the State Counsel or the Advocate General were at a loss to produce the Gazettes except to take time that it had been sent for. It is not that the Gazettes did not arrive. They did. But, the people asked a question that it may be all right as a technicality to say that the Gazette bears the date of the manuscript when the Government order may have been issued, but, why could the Government not append the Gazettes to the counter-affidavit instead of typed copies. The Court has no answer for this as, by law, the Gazette will be deemed to have been published on the date which is borne on it, but, this presumption is rebuttable. The deeming provisions of law may be good for the Court, but, it does not inspire public confidence. This process of producing the Gazettes chasing the typed copies of rules during the hearing of these cases, went on to rest, when on 21/09/1994 a notification was produced announcing the publication of the survey of backward classes, announcing, for the first time, that on a survey caused by the Government there is a publication. If that be so, the question asked on behalf of the petitioners was, whether they were disentitled to have access to this public information. In this regard, they submitted, they are entitled to know whether the survey is correct or not as the law does give them an opportunity to file their objections on the correctness of the survey. The survey, as may have been caused, they submitted, plainly announces that it is available effective 21/09/1994. Admittedly, they contended, this survey was not available before this date and this relevant factor alone leads one to believe that the election was being rushed in the fact of denial of information which the public is entitled and have access to, but only eight days before the schedule of elections begin. When such information on the survey of the backward classes, would reach the rural parts of the State The State respondents were at a loss to explain either to the petitioners, as people, or to this Court.

(9) AFTER the constitutional amendments came into effect and the Act was amended by the U. P. Panchayat Laws (Amendment) Act, 1994 the State Government, through the Director of Panchayats, issued instructions to the district administration to gear up the administrations to orient itself of the changes in the village administration relating to the Panchayats. The instructions were issued to the District Magistrates and Collectors all over the State. But, the instructions as were issued by the State Government to its District Magistrates were internal to the administration.

(10) THE various controversies which have been raised in the writ petitions before the Court, are all those on which no satisfactory answer is available on behalf of the State of U. P. As petitions came to be filed from day to day, two of them, namely, Writ Petitions No. 28646 of 1994, Ram Sundar Gupta v. District Panchayat Raj Officer, Allahabad and No. 28705 of 1994, Manager Sharma v. State of U. P. , the Court consigned them to the record, at the admission stage, with the observations that if as a prelude to elections the electorate was seeking information from the administration at their level, i. e. , the Block or the Collectorate, as the case may be, such informations as was germane to the purposes of elections whether on the count down of population, reservation, delimitation, amalgamating two or more villages of carving out Panchayat areas were such informations which could not be denied to any member of a Gram Sabha who had been conferred the right by the Constitution of India, to vote. The Court had indicated in the two writ petitions that even under the unamended Act and before the amendments to the Constitution, as they stood, the making, of a list of constituencies, so determined out of the villages, had to be specified by the Director of Panchayats and the list was to be published. The constituencies could be re-determined and amended and the amended list was to be published in the same manner as the list of constituencies itself. Further, any document that was published, in reference to these aspect, was to be made available for public inspection, free of charge, for a certain number of days from the date of publication and the availablility of the information, was to be announced in the village by beat of drum in the area concerned. During the period of publication, the information was to be provided to the citizens of the village without charge and, in any case, any person in the village was entitled, as of right, to inspect such list or documents and to have an attested copy of any entry or any extract in the matter relating to constituencies, its determination, re-determination, limitation or delimitation. The Court had cautioned the State Government not to be difficult in making such information available to the electorate as people were entitled to the information in the filing their objections as part of their participation in local self-Government in getting themselves ready, along with the State, for the election which were being announced.

(11) AFTER detailed arguments addressed at length by several counsel for the petitioners, and on examining the record of almost 130 petitioners, and upon perusing the five affidavits filed by the State appending documents on Government notifications, correspondence between the Directorate of Panchayat Raj to the Collectors or the rules published as and when they were being published, during the course of hearing, and after hearing the summing up of the arguments of the petitioners, in rejoinder, the Court is left with an impression that a slipshod exercise to go into elections was being forced on the electorate of the Villages. Now from the record it is clear that no machinery worth the name was ready to meet the elections nor the data base as a foundation for the election had been prepared nor, even if prepared, had it been made available to the people. The Village:

(12) THE very first basic change which the Constitutional Amendments were bringing in for local self-Government at the village level, was the compactness of the village administration to permit a village to be specified by its name to give it an identity and personality, both. Nothing was shown to the Court regarding the basis on which the State Government would notify a Gram Sabha for a group of villages nor the norms to include a group of villages so notified. The only answer given to the Court was that if the State Government could declare a Gaon Sabha in 1947, under the law, then, it can do so now, as there is no bar which prevents the State Government from notifying a Gram Sabha straightway. This analogy may be good for logic but, this will not hold as a rationale as the test is the test of time. What may acceptable in the context of power in 1947 of a nation with Dominion status, may be arbitrariness in a Republic. Further, such legislation, is to protect the aspiration of the people in the functioning of a democracy. Before going into a discussion on this aspect, it would be best to examine what the Constitution of India says on this very aspect and, then, compare whether the State legislation, in reference to establishing a Gram Sabha has catered to the wishes of the people. It must be remembered that in considering the aspiration of the people, more so, as the first level of democracy, the phenomena of a case of identity of the people, their sentiments, feelings and chauvinism, cannot be forgotten.

(13) THERE is no doubt now that the Constitution of India obliged the Legislature of the State of U. P. to provide for functions of the Gram Sabha at the village level. On this reference may be had to Article 243a of the Constitution. Simply declaring by a notification that this village henceforth would, by a name so given, be that Gram Sabha, or that the village having the largest populationamongst a group of them, will take the name of that village in that conglomeration, is not what the constitutional amendments had intended.

(14) AN entirely new exercise was expected by the Constitution of India. If grassroot democracy is to hold, then, the aspirations of the people are best expressed by getting them together and expressing themselves in the formality of what the law knows, and politicians call it, as self-determination. This is a dangerous subject of the law for those who do not listen to the valid political aspirations of the people. It is a catch phrase which is capitalised upon by mischief makers to disturb the sovereignty of nations, to cause ripples. So easily done by just throwing a pebble on calm waters. They call it, plebiscite. Why let situations come to that stage, as self- Government only and simply means Government of the people, for the people and by the people, at all stages, federal, State or local.

(15) THE records of the State Government, now before the Court, show that the intention to receive the declaration of the people to constitute themselves as a village and consequently a Gram Sabha, was an exercise which was ordained by the Constitution of India, but, the State Government in the rush to push an election, forbade the setting up of a new Panchayat administration. As a step one, if a solitary village was to retain its identity, it had to be specified. The Gram Sabha was only consequential and followed. If a particular village has aspirations to keep its identity and not align or infuse it into another group of villages, then, its yarning to retain its identity, needs respect. The Constitution of India has not prevented any village from keeping its aspiration, no matter how small it is, to retain its identity and be a village specified by a public notification. The Constitution of India respects such a hope and dream.

(16) THERE must not be undue pressure and haste in going against the will and the grain of the identity of the people, to start grouping the villages only for the collective sin of having less people in their habitat. Sociology does not encourage it, correct politics discourages Local self-Government was not meant for that. The people themselves will determine this aspect. Such of those village which desire to be grouped, must have an avenue by which they can speak, on their identity, without coercion by the State Government. This muscle power which has been so apparent in the actions of the State Government in making the identity of more than twenty thousand villages disappear, is not a good phenomena. In the counter-affidavit of the State Government, sworn on 16/09/1994, it has been averred that, whereas in the State of U. P. there were more than 75,000 villages, after the amendments to the Act the State Government has reduced them to 55,000. The Constitution of India neither suggests nor encourages, thus, the question of reducing the number of villages in the State defeats law and logic both. That it may be convenient for the State administration to bring down the number of villages from 75,000 to 55,000, is only negating the spirit of the Constitution. The Constitution respects, a village habitat, its peoples, its personality, its projection. The Constitution does not restrict their size to a formula. It is up to the village, that be the habitat, whether it will merge into another or not. This is not the power of the State Government. This is virtually asking the people to forget their name, status, personality and character. The entire situation in East Europe, particularly, the erstwhile Yugoslavia, was not dissimilar from what the State Government has done. The frustration of the village people to find their villages disappear and lose their personality, is writ large in all the writ petitions before the Court.

(17) TO do justice in the issues and the cause before the High Court, the amendments brought to the Constitution of India need to be understood, in depth. It is only, thus, that the perspective on what was being infused as a constitutional obligation to base parliamentary democracy upon, would be understood. What was being injected into the already existing pattern of Panchayats and with what emphasis, needs to be noticed. The collective Power of the people for grass root democracy, in the context of these cases, is at the village level.

(18) IN the Act (U. P. Panchayat Raj Act, 1947), a village was understood with whatever it was as referred in Section 2 (t). By Article 243 (g) of the Constitution, it is specified by the Governor, by a public notification, to be a village, and it may also be a group of villages. Then, why adopt an earlier definition, which says that a village means any local area, recorded as a village in the revenue records of the district in which the State Government may, by general or special order, declare to be a village. That is not so. The power does not vest with the State Government any more. It is with the people. The people of a village will identify their habitat. The Governor of the State will specify it by a public notification, under the Constitution. The State Government cannot do so by a general or special order.

(19) THERE is a conscious and radical difference between the two defintions. In the earlier definition in the Act, it was qualified by being a village in the revenue records, failing which as one declared by the State Government. The Constitution Amendment Act made the concept very simple to read :

"243. Definitions.- In this part unless the context otherwise requires - (g) "village" means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified. " The definition as inserted to the Act, by the Amendment Act, reads: "2 (t) "village" means any local area, recorded as a village in the revenue records 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 purposes of this Act. "

(20) WHAT would be the basic difference between the power exercised to establish a village under Section 3 of the Act, and so specified by the Governor by virtue of Article 243 (g) of the Constitution of India The expressions "establish" and "specified" have been borrowed from the Act and the Constitution, respectively.

(21) THE first basic difference is between a farman as a hukum tanhai and a ailan resting on the desire of the people indicated to the head of the State and specified as such.

(22) IF the State Government had to enact, virtually, more or less the same definition, as under the old Act, no attention was paid to the change which the Constitution of India was bringing in and it leads to the presumption that the concept of a village, as referred to in the Constitution of India, was either avoided or not understood by the State Government. And, if the concept of a village will not be clear then the implications of local self-Government at the Panchayat level will also not be understood in clarity. Referring to the duality of the personality of a village that it must be recorded as a revenue village, as one of the attributes, was an old concept mentioned in the original Act, as it was enacted in 1947. Villages are not just for making an earning out of. The Constitution of India makes no difference between a revenue village and a Village which is not a revenue village. We are dealing with administration and every town cannot be a capital. Likewise, every village may not be a revenue village. The concept that a village to have sanctity under the Act must be recorded as a revenue village was a concept to be treated as redundant. Any village specified by the Governor by a public notification for the purposes of the Act, has an identity. There is a possibility that a conglomeration of villages could be specified as a village. Further, the State Government, as, in the unamended Act, or, for that matter, in the Act as amended, continues to hold the power to declare a village by a general or special order. Under the Constitution of India, the Governor has to specify a village by a public notification. A general or a special order will not do. It is not the State Government which, will declare this public notification. The Governor will specify a village by a public notification to give it a statutory identity. In this regard, the Act avoids the Constitution and, when it does, the concept of a village or the modality of creating one, becomes different than what the Act intends and what the Constitution of India desires. If the Constitution of India had mandated an entirely fresh approach to local self-Government at the village level, a general or a special order of the State Government could not give birth to a village, but, a public notification by the Governor could.

(23) A village is a habitat, which in turn is moulded by factors and circumstances, what natural history calls anthropology. A village or group of them, may also be abandoned by the people who live in it. Law cannot make provision for this phenomenon, should it happen. Law also cannot create a village. Thus, if the people indicate on their own that as a group of them their habitat will be known by a name, untill they say so, an alien will cannot be imposed on them. The identity of the village will be as the people of the habitat so desire. If they desire to be grouped, the wishes will be ascertained to be respected. In the absence of any express desire to be grouped, overtly expressed, a village cannot be grouped by the State Government nor smaller ones lose their face, name and identity and be known by a village name with the larger population. The proviso to Section 3 of the Act, which arranges such an exercise, has exceeded the Constitution and is against the concept of self-Government. Thus, the Constitution has taken the power away from the Government and given it to the people at the ground level, so to speak to indicate their identity on the habitat which will be their village, and the Governor will have it specified. The State Government, thus, cannot establish a village.

(24) THE State amendments to the Act have retained the outmoded concept on which Mahatma Gandhi has already given a critical appraisal. In 1947, when the Act was legislated. Mahatma Gandhi was alive. He was of the opinion that village administration could not be polarised to a revenue village. The 1947 image of village administration, in the State Act continues. The Constitution does not retain it, but the State enactment does not shed it. The views of Mahatma Gandhi are against the Village Panchayats administration hovering around a revenue village. He wrote:-

"panchayat has an ancient flavour; it is a good word. It literally means an assembly of five elected by villagers. It represents the system, by which the innumerable village republics of India were governed. But the British Government, by its ruthlessly through method of revenue collection, almost destroyed these ancient republics, which could not stand the shock of this revenue collection. Congressmen are now making a crude attempt to revive the system by giving the village elders civil and criminal jurisdiction. The attempt was first made in 1921. It failed. It is being made again, and it will fail if it is not systematically and decently, I will not say, scientifically tried. 2 2. Collected Works of Mahatma Gandhi, Vol. XLVI, page 239, Young India. (28-5-1931)

(25) THE Governor is obliged under Article 243 (g) of the Constitution to specify a village by a public notification. This would be the desire of the people, in rural India, to have their village establish as an exercise by them, for them and of them.

(26) IN this regard, the wishes of the people of a hamlet of a cluster of them to project their identity and be known as a village, could be conveyed to the Governor, through any modality, the District Magistrate not excluded, and thus, the Governor would be obliged under the Constitution of India to specify a village. The State Government cannot interfere in this aspiration of the people to identify themselves as a village. The people of the village will have their will expressed direct to the Governor without reference or interference by any political party which forms the government in the State. This, then is the beginning and the first step to ground level democracy moving into local self-Government. The amendments to the Constitution of India brought the concept in. The State Government ignored the Constitution of India, on government at the Panchayat level.

(27) IT is not for the State Government to establish a village by a general or a special order. This subject has already been dealt with. After the amendments to the Constitution, the situation must remain simple. Such of those villages which have continued since long and either the people have expressed their aspiration to identify themselves with those villages or those villages identify the people, these villages will be accepted by the State Government. But, as from the date when the constitutional amendments have taken effect, any peoples of the village who desire, their aspiration and identity to be noticed or any variations for the enlargement or delimitation of their aspirations to express themselves on what their village may be, will be taken to be as such, they have a right under the Constitution to indicate the identification of their village to the Governor of the State of U. P. , who will, then, by giving due regard to the wishes of the peoples of a particular habitat, specify that habitat to be a village, announced by a public notification. Any other notification which the State Government may have taken out after the amendments to the Constitution have taken effect, as being opposed to specifying a village in the exactness of a public notification to be issued by the Governor of Uttar Pradesh only, will have no meaning or sanctity. The indication of a village is a matter between the peoples of rural India or, for that matter, in the context, of Uttar Pradesh, the head of the State, is the Governor. The spirit of which is in Art. 243 (g) of the Constitution of India.

(28) THE Panchayat is for the village. The village as a concept was to be preserved. Panchayat was a medium to conserve the village as a working institution, not to destroy the village identity. Mahatma Gandhi commented on this aspect.

"i regard village Panchayats as an institution by itself. But thanks to the degradation of the caste system and the evil influence of the present system of the government and the growing illiteracy of the masses, this ancient and noble institution has fallen desuetude, and where it has not, it has lost its former purity and hold. It must, however, be revived at any cost, if the villages are not to be ruined"

3. Collected Works of Mahatma Gandhi, Vol. XLVII, Page 363, Young India, 27-8-1931.

(29) THIS lack of misunderstanding in not comprehending the shift of political power at the village level, has prevented the State of U. P. in not overhauling, the legislation, the Uttar Pradesh Panchayat Raj Act, 1947 in line with the Constitutional Amendments. What was done in Uttar Pradesh was a scissor-and-paste business by adding amendments without understanding the conceptual changes. Gram Sabha:

(30) THE Act, even after the amendments incorporated into it, has not brought the concept and purpose of a Gram Sabha in line with the Constitution of India. Emphasis is not to be lost sight of in understanding the concept of a Gram Sabha and its place in rural administration and politics, both. Any conceptualisation of a Gram Sabha will now have to be understood as a standardised concept given by the Constitution of India and not by provincial chauvinist politics. The underlining is on local, but self-government at the village level, not imposed rule either from the secretariat or the hegemony of the members of either the Legislative Assembly or Parliament. There is to be no interference in the sphere of the affairs of rural polities, in the territory of its decision making, already decentralised by the Constitution of India.

(31) EVERY village was to be taken on its face value, and an administration of, for and by the people arranged for the village as a constituent of administration. Grouping of villages was an exercise to be taken only in exceptional circumstances, carrying the sanction of the free will of the people of the village. On this Mahatma Gandhi said : Independence must begin at the bottom. Thus, every village will, be a republic or Panchayat having full powers. It follows, therefore, that every village has to be self-sustained and capable of managing its affairs even to the extent of defending itself against whole world. . . . . . . . . . . In this structure composed of innumerable villages, there will be ever-widening, never-ascending circles. Life will not be pyramid with the apex sustained by the bottom. But it will be an oceanic circle whose centre will be the individual always ready to perish for the village, the latter ready to perish for the circle of the villages, till at last the whole becomes one life composed of individual, never aggressive in their arrogance but ever humble, sharing the majesty of the oceanic circle of which they are integral units. 4

4. The Collected Works of Mahatma Gandhi, Vol. LXXXV, Pages 32-33, Panchagani, 21/07/1946, Harijan, 28-7-1946. When the Mahatma referred to every village, he projected the identity of it. When he spoke of every village having the attributes of being self-sustained and capable of managing its affairs, his reference, was, in effect if not virtually to the Gram Sabha in the Constitution of today.

(32) NOW, if a group of villages is to be, taken for including in the concept of a village, as suggested by Art. 243 (g) of the Constitution of India the manner in which it would so specified, need to be indicated. The modality in which a group of villages will be specified as a village by ascertaining the wishes of the people of the village is not found in the Act or any rules. Thus, the proviso to S. 3 which says that where a Gram Sabha is established for a group of villages, the village having the highest population shall be specified as having the name of the Gram Sabha, has gone beyond the Constitution as making one village or the other lose its identity. How will the consent of the local people be taken to a preconceived suggestion that a village with a lesser population would henceforth lose the name of their village This cannot be a phenomena as at the ground level itself the concept of local self-government has been disrespected. The Constitution does not intend it so. And the people of the village must have their intelligence respected to form themselves into a constituency which, then, would be paying respect to the identity of the village.

(33) FAILING which, on this issue alone, people have taken issues to retain their identities unless permitted participation with a free will to formulate their local government in an area of it. In the Act, the net result is that if the villages are to be grouped, they are to he known by a single name, the criteria that amongst many villages all will lose their name, without consulting them is against the grain of self-determination in a democratic set up of a civil administration in a Parliamentary democracy. Therefore, the phrase or group of villages by such name as may be specified occurring at the end of Section 3 of the Act before the proviso is an expression which is extra and beyond the intention of the Constitution. The proviso in itself would be all right provided the guidelines are to be available in the manner in which the villages are to be grouped and specified as a village. This concept of making villages disappear and lose their name, culture, heritage and identity, is creating much confusion in setting up an administration without consulting the people.

(34) THUS, after a village, the next subject which needs understanding, is the Gram Sabha. The incompatibility in the Act and the Constitution is glaring.

(35) WHAT is a Gram Sabha How does the Constitution of India picture this constituent of village administration

(36) THE Constitution refers to the term gram Sabha at two places. In Article 243 (b) while defining it and by Article 243-A, in explaining it. The references in the Constitution of India read: "243. Definitions.- In this part unless the context otherwise requires,-

(b) "gram Sabha" means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level;"

"243 -A. "gram Sabha.- A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide. "

(37) THE meaning of the concept of a Gram Sabha is very clear, by the Constitution. No one has to establish a Gram Sabha, only its powers and functions, at the village level, will be provided by the Legislature by law.

(38) THE identity of a Gram Sabha are its people who have the capacity to exercise adult franchise confined to a village. A Gram Sabha goes hand in hand with a village and is dovetailed with it. A village may be a group of villages, but, a Gram Sabha will be synonymous with it.

(39) THE Act, contradicted the Constitution, in conferring more powers on the State Government in establishing Gram Sabhas. This the Constitution did not permit. The villages already exist, or will exist when so specified by the Governor by a public notification. The Gram Sabha is the appendix of an already existing identity of a village.

(40) THE contradictions in the Act the Constitution of India are thus: The definition of Gram Sabha in the Act in Section 2 (g) reads: the definition of Gram Sabha under Article 243 (b) of the Constitution of India reads

" (g) "gram Sabha" means a body established under Sec. 3, consisting of persons registered in the electoral rolls relating to a village comprised within the area of a Gram Panchayat" " (b) "gram Sabha"; means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level"

(41) CONSEQUENTLY, this necessarily takes one to refer to Section 3 of the Act. It is a solitary, section to a solitary Chapter. Chapter II is under the heading "establishment AND CONSTITUTION OF GRAM SABHA", which contains only one Section. It records:

CHAPTER II establishment AND CONSTITUTION OF GRAM SABHAS 3. Gram Sabha.- The State Government shall, by notification in the Official Gazette, establish a Gram Sabha for a village or group, of villages by such name as may be specified: Provided that where a Gram Sabha is established for a group of villages, the name of the village having the largest population shall be specified as the name of the Gram Sabha. Extensions.- The Act has been extended to the following areas under notifications mentioned below:- (Table not reproduced)

(42) THE glaring anomalies and clear contradiction between the Act and the Constitution are there to be seen by the naked eye and can best be seen side by side: ON CONTRADICTION; CONSTITUTION OF INDIA u. P. PANCHAYAT RAJ ACT, 1947 243 (b). "gram Sabha" means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level 2 (g) "gram Sabha" means a body established under Section 3, consisting of persons registered in the electoral rolls relating to a village comprised within the area of a Gram Panchayat

(43) IN the Constitution of India, Gram Sabha is born with a village being specified by the Governor by a public notification. The moment a village is identified, a "gram Sabha" is born to consist at every given time of a body consisting of persons registered in electoral rolls of that village. The words "means a body consisting of persons" (emphasis) is important. The, automatically incorporated character of a Gram Sabha is fertilised in the embryo of the village. The State Government does not have to, neither it has the power to impregnate it. The body or the character of the Gram Sabha is qualified by a earmarked identity "of persons registered in the electoral rolls" relating to a village.

(44) IF the State Government is not sure on how the administration of the Gram Sabha or the Gram Panchayat will function either in the area of the Gram Sabha or in the Panchayat area, then, it appears that there is some confusion in implementing the Constitutional Amendments. In the enactment itself, the status of a Gram Sabha has been compromised and belittled. The Constitution of India did not intend it to be this way. While under the provisions of the Act, the Gram Panchayat was the executive body of the Gaon Sabha (an expression used in the Act before the amendments to it), implying thereby that it was always correlated directly with the Gaon Sabha.

(45) BUT, first and foremost, the nexus between a Gram Sabha and a village will have to be understood clearly. It would be best to see the Constitution of India on it. In the Constitution of India, as amended, the expression gram Sabha is to be found in two articles only. It is Arts. 243 and 243-A. At the outset, it must be deciphered whether the Gram Sabha, as a generality, is in reference to a village Article 243 (b) clearly mentions that gram Sabha means a body of persons registered in the electoral rolls relating to a village.

(46) ARTICLE 243 (g) while defining village, mentions that a village is one as specified by the Governor by a public notification to be a village for the purposes of Part IX of the Constitution. In reference to this the words "and includes a group of villages so specified" is an exception. While referring to a Gram Sabha, Article 243-A mentions that a Gram Sabha may exercise such power and such functions at the village level as the Legislature of a State may, by law, provide. One thing to be noticed is that the Constitution of India itself stipulates that the Gram Sabha is directly related to a village. The reference to a village is by a definite article in its grammatical variations. This is the generality of the concept. The exception is that there may be a possibility that a village may be a village which may include a group of villages. This implies that in the definition of the word village a possibility cannot be ruled out that there may be a conglomeration of a group it habitats of villages. But, this qualification is in reference to the definition of a village. It is not a qualification for a Gram Sabha. A Gram Sabha is not correlated, as a generality, to a group of villages, but, simply to a village. That a village may be composed of more than one hamlet or a group of hamlets, is a totally different concept than to suggest that a Gram Sabha may be composed of a group of villages. Unless this concept is clear, there will be confusion in setting up the administration for Panchayats at the grassroot level. But, there is nothing available as rules on how a group of villages will be specified to be taken as a village so as to give it a direct nexus with a Gram Sabha. That a Panchayat area may be separate for many villages or a group of villages, is an entirely different concept than to identify a village, or in reference to it, a Gram Sabha. Unless this pattern is made absolutely clear, the making of a systematic geometry, for the administration of the Panchayats will be unclear. The Constitution has given due regard to the identity of a village and has conceptualised it as synonymous with a Gram Sabha.

(47) THUS, reverting to the Act, it is found that, to the extent, that the expression gram Sabha is mentioned in Section 2 (g), the definition of a gram Sabha implies that it consists of persons registered in the electoral rolls relating to a village of a Panchayat. Thus far, the definition is compatible with Art. 243 (b) of the Constitution of India. But, thereafter, the extra expression in the definition that it is a body established under Sec. 3, and, in addition, this must be understood that way, there is a contradiction in terms with the definition of gram Sabha in the Constitution of India.

(48) FOR the purposes of permitting permeating and encouraging local self-government, under Part IX of the Constitution of India, as simply as the Constitution says so, the Governor is obliged, by a public notification, to specify or name the village to carry out the intent of Constitutional Amendments, i. e. , Part IX of the Constitution of India. And, this further implies that this has nothing to do with any other definition of village or is its concept which may be existing in any other law for the time being.

(49) FOR a village or a Gram Samaj to be established, the process of it has to be prescribed, with the Constitution as a guideline.

(50) THE body, soul and character of the Gram Sabha is given in the Constitution of India. It cannot be altered. It is as naked as the Constitution says so. In the Act, by attempting to explain more and beyond the Constitution, the Act has, in fact, weakened the concept of a Gram Sabha, as if its constituent character can be modulated by the State Government. To that extent, the Act offends the Constitution and negates local self-government.

(51) THUS, under Section 3 of the Act, the State Government does not have the power to establish a Gram Sabha. Gram Sabha is a necessary corollary to a village specified and recognised by a public notification, to be a village, issued by the Governor. In the same manner given the circumstances, a village may mean a group of villages, in which case the Gram Sabha goes with it. The Gram Sabha does not have to be established. It is always there at every given time among a body of persons registered in the electoral rolls. Correlation: Village with Gram Sabha.

(52) IF the intention of the Constitution clearly is that a Gram Sabha means a body consisting of persons registered in the electoral rolls relating to a village (Art. 243-B), then the identity of a Gram Sabha cannot be alien to the concept of a village. If the village is an institution which will be specified by the Governor as the Constitution of India obliges him to do so (Art. 243-G), then there is to be a compatibility between the concept of a village and a gram Sabha, both defined in the Constitution of India, and the two cannot be separated, as there cannot be a Gram Sabha or a body consisting of persons registered in the electoral roll relating to a village without a village. The corollary follows that a Gram Sabha follows a village. Any exercise by the State Government to ignore this principle certainly does not fit into the scheme of the Constitution of India. The State Government by its notifications5 arranged the Gram Sabha, by establishing it, and aligned it into a Panchayat Area. But Gram Sabha is a body of persons consisting of persons registered in the electoral roll relating to a village. The arrangement of a Gram Sabha with others without taking the consent of the people who have the potential of an adult franchise, cannot be done. A village conceives a Gram Sabha. The State cannot establish it. The Constitution does not permit it. When a village is specified, the Gram Sabha is identified, ipso facto. In this regard, a sample placed before the Court being a notification of 3/08/1994, No. 3/1446-3-22-94, in reference to the Gram Sabhas and Panchayats in the District of Sultanpur and the notification dated 4/08/1994, No. 3/1488/ 94-3-22-94 for Sitapur in the absence of consultation with the people who exercise adult franchise in a village, may not hold and is objectionable to the Constitution. All such, notifications in reference to other districts violate the concept of conceiving and accepting a Gram Sabha with the village. In reference to the villages and the peoples identity with it, a public notification specifying a village can be issued by the Governor of the State only, not by the State Government. The concept of a Gram Sabha as a body of people will come into the offing only after each village is specified as directed by the Constitution under Art. 243 (g). Consequently from this it follows that the body of persons exercising adult franchise registered at the village emerges with the character of a Gram Sabha. The State will have to accept the Gram Sabha which emerges with a village. The State cannot establish a Gram Sabha for a village. The Constitution has not given it that liberty or authority. To that extent Section 3 of the Act as it stands today conflicts with the Constitution of India. Under the Constitution of India, a Gram Sabha relates "to a village". Reference to a definite article and the singularity may be noticed. The plurality is to be found if exegencies occasion, in grouping villages. The Constitution permits more than one habitat to be grouped. In this regard, upon the people concerned consenting, more than one village may be grouped as one, if this happens, then the villages so grouped, to be known as one will inevitably, naturally as a self regulating Constitutional exercise, see the birth of a Gram Sabha relating to this grouped or put together villages. The consent in grouping villages as an exercise will be reflected, amongst persons registered in the electoral rolls relating to a village. This will be true democarcy all the way through. This is self determination in civil rule as opposed to a military junta, respecting peoples aspirations. The Constitution of India has to be a accepted. The peoples aspiration is to be respected.

5. No. 3/1446/94-3-22-94, dated 3/08/1994 and No. 3/1488-3-22-94, dated 4/08/1994, both oil record.

(53) SIMPLY put, the Gram Sabhas will be of the village amongst its people registered in the electoral rolls. What the Act failed to see in the concept was that the Pradhan will come to the people, the people will not go to the Pradhan.

(54) THE next aspect is the Gram Sabha in its working, i. e. , its meetings and functions. Article 243-A obliges the State Legislature of a State to provide for its powers and functions. Thus, Chapter III of the Act, particularly Section 11, has so prescribed it. The first function of a Gram Sabha is to hold two general meetings

(55) FOR the quorum of the meeting of Gram Sabha one-fifth of the number of members shall form the quorum, but who will be the member of it Again, we have to take recourse to the definition of gram Sabha which stipulates that they will be the persons registered in the electoral roll. Quorum will be composed of the persons of such members. The matters which the Gram Sabha shall consider, will form its recommendations to the Gram Panchayat. These are no ordinary matters insofar as the first step democracy is concerned as operating in a village or a group of villages. The matters are (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; (b) the report regarding the development programmes of the Gram Panchayat; (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 prescribedbed. Section 11 further stipulates that the Gram Panchayat shall give due consideration to the recommendations and suggestions of the Gram Panchayat. In addition, the section also says that the Gram Sabha shall perform the function 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 scheme pertaining to the village. It appears that the State Government forgot that the Gram Panchayats, at best, were the Board of Directors and the Gram Sabhas were the share-holders with the overall sanction of accounts and administration the development programmes, the obligation to promote the unity of social fabric of the village, its, education, the, aspiration for mobilising, by persuasion, voluntary labour and contribution to the unity of the village for its ultimate welfare, identifying the ultimate beneficiaries who will receive the fruits of planning and to assist by its efforts in the development schemes of the village. The Gram Sabha has the overall sanction to ratify or deny matters relating to funds and accounts. It recommends the budget of the Gram Panchayat. This body cannot be belittled. The State Government forgot this aspect and the entire story of the elections in the villages began straightway in concentrating on the Panchayat area. Even the arguments on behalf of the State Government were that there is a no sanction of law required to constitute a Gram Sabha as the State Government could, any time, do so by a notification. The logic was that if this could be done in 1947, the sanction of the law holds good in 1994. The argument is ridiculous as in 1947 India was in a transition stage as a nation under an imperial power and, at best, had a dominion status under the Indian Independence Act, 1947. In 1994, procedures will have to be prescribed for all these important. bodies, the first nucleus of a parliamentary administration in its formation and establishment. Panchayats:

(56) HAVING identified the first nuclues of the village administration as being the Gram Sabha, the next stage is to consider a Panchayat and the area within which it will operate. What after all is the meaning of Panchayat. On this, Mahatama Gandhi said, "it literally means an assembly of five, elected by villagers. " The expression panchayat relates to people. It refers to persons and five of them. The Constitution of India, now devotes a Chapter on this. It is about local Government. The Constitution of India does not mention how many will constitute a Panchayat. But, it also does not say how many will not constitute a Panchayat. Notwithstanding this, it is not that the concept is not clear. The concept, known as Panchayat as it relates to a unit of a village, had been highlighted by no other person than Mahatama Gandhi. In this regard the State Government, was to keep in mind that by Panchayat area was meant the territorial area of a Panchayat. Both the expressions panchayat area of a territorial area of a Panchayat are referred to in the definition clause, defining panchayat area in cluase (e) of Art. 243 of the Constitution of India. Panchayats were to be constituted in the district. There was to be a Panchayat at the stage of the village, the intermediate level and the district level. In simple terms, it means that there has to be a Panchayat area in reference to a territory of a Panchayat in a village, in reference to a Kshetra Samiti and in reference to a Zilla Parishad. The Court, at present, is concerned with the Panchayat at the village level, as the pattern in reference to others, the exercise is synonymous.

(57) MAHATAMA Gandhi had, reflected upon the concept and the idea of an ideal village. He had not diluted the abstraction to subjugate a village to a Panchayat. The Panchayat was a notion in a village. On his purpose to outline a village, he said: "my idea of village swaraj is that it is a complete republic, independent of its neighbour for its own vital wants, and yet interdependent for many others in which dependence is a necessity. Thus every villages first concern will be to grow its own food crops and cotton for its cloth. It should have a reserve for its cattle, recreation and play ground for adults and children. Then if there is a more land available, it will grow useful money crops, thus excluding ganja, tobacco, opium and the like. The village will maintain village theatre, a school and public hall. It will have its own waterworks, ensuring clean water supply. This can be done through controlled wells or tanks. Education will be compulsory upto the final basic course. As far as possible every activity will be conducted on the co-operative basis. There will be no castes such as we have today with their graded untouchability. Non-violance with is technique of Satyagraha and non-co-operation will be the sanction of the village community. There will be a compulsory servile of village guards who will be selected by rotation from the register maintained by the village. The Government of the village will be conducted by a Panchayat of five persons, annually elected by the adult villager, male and female, possessing minimum, prescribed qualifications. These will have all the authority and jurisdiction required. Since there will be no system of punishment in the accepted sense, this Panchayat will be the legislature, judiciary and executive combined to operate for its year of office. Any village can become such a republic today without much interference even from the present Government whose sole effective connection with the villages is the exaction of the village revenue. I have not examined here the question of relations with the neighbouring villages and the centre, if any. My purpose is to present an outline of village Government. Here there is perfect democracy based upon individual freedom. The individual is the architect of his own Government. The law of non-violence rules him and his Government. He and his village are able to defy the might of a world. For the law governing every villager is that he will suffer death in the defence of his and his villages honour. The reader will ask me - I am asking myself while penning these lines - as to why I have not been able to model Sevagram after the picture here drawn. My answer is : I am making the attempt. I can see dim traces of success though I can show nothing visible. But there is nothing inherently impossible in the picture drawn here. To model such a village may the work of a lifetime. Any lover of true democracy and village life can take up a village, treat it as his world and sole work and he will find good result. He begins by being the village scavenger, spinner, watchman, medicineman and schoolmaster all at once. If nobody comes near him, he will be satisfied with scavenging and spinning.

(58) THERE can be no Panchayat area without a Gram Sabha which will exercise its jurisdiction within that area. Section 11-F refers to the State Government, by notification, declaring an area comprising of a village or a group of villages, having, so far as practicable, a population of one thousand, to be a Panchayat area. There is no procedure available how the State Government will declare any area, as a Panchayat area. The old Section 12 which refers to the Constitution of a Gaon Panchayat, will render no assistance, as the area of the Gaon Sabha was the limitation of the circle of its Executive Committee, known as the Gaon Panchayat, and, as every Gaon Sabha had an Executive Committee, known as the Gaon Panchayat, it went hand in hand with the Gaon Sabha. The amendments bought by the Constitutional Amendments made a change in it. The Panchayat could be representing villages which may not correspond to village or villages of a Gram Sabha. Sectiton 110 gives powers to the State Government, under sub-clause (ii) of sub-section (2) thereof, to make rules which provides for establishment of a Gram Sabha or a Nyay Panchayat or the Constitution of a Gram Panchayat. Thus, when Sec. 11-F declares that the State Government, by notification, will declare any area whether of a village or a group of villages to be a Panchayat area, the criteria must have the sanction of law in which are provided the norms which permit the State Government to so declare an area as a Panchayat area. The Court was intimated that since April, 1994, when the amendments to the Act were brought, there are no rules on this aspect. The argument that this is a power reserved to the State Government, as if was reserved in 1947 to declared Gaon Sabha, likewise, it can declare a Panchayat area. The Court has already noticed this argument that, today, in matters of public accountability in public administration, the fiat of the Executive, without sanction of law, will not hold and the Act itself says that the rules shall make provisions for the establishment of a Gram Sabha or a Nyay Panchayat. Thus, the summing up is that while the State Government may declare a Panchayat area, but, if it does so without any sanction or guidelines providing for the procedure, the manner in which it would be done in a matter relating to local self-government would be without the sanction of the people.

(59) IT is not anybodys case that Panchayat area should be carved out. Every petitioner submitted that it should be, but, a standardised procedure should be available. The Constitution has prescribed on the composition of Panchayats. To constitute a Panchayat is a constitutional obligation. Article 243-B makes this mandate loud and clear to say that there shall be constituted in every State, Panchayats at the village, intermediate and district level in accordance with the Constitution. The expressions village, intermediate and district levels in Art. 243b are significant. Self-government as a generality has to be an integrated concept right upto the Federal Parliament. Logically, a Panchayat has to operate within a sphere as a Gram Sabha to a village.

(60) THE amendments to the Act have completely ignored the constitutional amendments, to constitute within the State, Panchayats at the village, intermediate and district levels. To interlink a village to a Gram Sabha, Panchayat or a Panchayat area, the answer, now, is in the Constitution. Any other meaning in existing legislations would have to give way to the Constitution of India. The expressions panchayat, panchayat area are given in the Constitution of India. Panchayat is the concept of democracy, in action, at the grassroots, in areas other than urban. The Constitution attaches significance to this concept to call it an "institution" and function as institutions of self-government". Panchayat area is the expanse and the survey within which a Panchayat will operate.

(61) THE Constitution of India defines the words panchayat and panchayat area in very clear terms. It is mentioned in the definition clause, Article 243:

"243. Definitions.- In this part unless the context otherwise requires,- (d) "panchayat" means an institution (by whatever name called) of self-government constituted under. Art. 243b, for the rural areas: (e) "panchayat area" means the territorial area of a Panchayat;"

(62) AN expression which is being frequently used by the Constitution and is occurring repeatedly in Art. 243-C, under the sub-heading composition of Panchayats are the phrases territorial area of a Panchayat and territorial constituencies. There can be no Panchayat area without the territorial area of a Panchayat. There can be composition of a Panchayat without territorial constituencies.

(63) THE Act does not explain these expresssions, but, straightway talks of establishing it and declaring it. In reference to Panchayat, the definition clause under the Act refers to it as gram Panchayat. The definition in the Act stands as: 2 (h) "gram Panchayat" means the Gram Panchayat established under Section 12;

(64) THE reference to Panchayat area, in the Act, reads as: (11) "panchayat area" means the territorial area of a Gram Panchayat declared as such under sub-section (1) of Section 11f;" This does not explain much.

(65) ONCE a village has been specified by the Governor by a public notification and this may include a group of villages, so specified, as mandated by the Constitution by Article 243 (g), there cannot be overlapping and duplication as has been done in Section 11-F, to notify and declare areas comprising of a village or group of villages into Panchayat area. This is where the other misunderstanding happened and gave rise to these large number of writ petitions. A village, or a group of them, will be specified by the Governor by a public notification only once. In that simplicity, a Gram Sabha has emerged relating to a village.

(66) TWO notifications contradicting each other cannot exist, one by the Governor under Art. 243 (g) of the Constitution of India and another by the State Government realising villages for declaration of Panchayat area. This has and will create confusion. The baseline notification will be the Governors giving an identity to the village. The rest of the super structure of Panchayat (Raj) will be built upon this.

(67) BEFORE the Legislature of a State, under Art. 243-C, may, by law, make provisions with respect to the composition of Panchayats, the aspect of constitution of Panchayats, referred to in Art. 243-B is not to be ignored, otherwise, the pattern or the composition of Panchayats will not fit into a correct mould. Let Art. 243b be referred to: "243-B. Constitution of Panchayats.-

(1) There shall be constituted in every State, Panchayats at the village, intermediate and distirct levels in accordance with the provisions of this Part.

(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs. "

(68) THE Constitution of India is determined to constitute local self-government in every State at the village, intermediate and district level. In a State having a population not exceeding twenty lacs, Panchayats at the intermediate level may not be constituted. The purpose of linking a village with the district level is ensuring continuity of local self-government or as the Constitution itself refers to the functions of a Panchayat by calling them "as institution of self-government at the appropriate level. "

(69) IN the Act no mention has been made to connect the link at the village, intermediate and district level. Local self-government in India operates in two spheres urban and rural. The concept of administration, as self-government, in rural India is so born when one looks at the powers, authority and responsibility of Panchayat, as given in the Eleventh Schedule to the Constitution of India, corresponding with Art. 243g. Each one of the 29 items relate to functions of a Panchayat in a village or conform to rural activities. Logically, what is not urban, may be rural. For administration, while an urban area may not be defined, but, rural area has been explained. The expression rural area occurs in an Act, which was known as Kshetra Samitis and Zilla Parishads Adhiniyam, 1961, and now, recast as Kshetra Panchayat and Zilla Panchayat Adhiniyam, 1961 (hereinafter referred, to as the 1961 Act). The term rural area occurs in sub-clause (10) of Section 2 of the 1961 Act. This term reads:

"2 (10). "rural area" means the area of a district excluding every municipality, notified area, town area, cantonment and area of Nagar Mahapalika situated in the district,"

(70) NOT to be ignored in the 1961 Act is a reference to the term gram Sabha", gram Panchayat, and circle, as referred to in Section 2 (8) of the definition clause.

(71) WHILE a village has to fit into a Panchayat area and a Gram Sabha will operate as being correlated to a village (in its different variations), all these terms, whether village or gram Sabha, must operate within a Panchayat area, a term used in Article 243 (c) of the Constitutionn of India. The Court mentions this aspect as a next step in the constitution of a Panchayat (Art. 1243-B).

(72) CONSTITUTION of a Panchayat has to be provided, but on the pattern and concepts explained in the definition clause, Art. 243. The terms village, Gram Sabha, Panchayat, Panchayat area, the Composition of a Panchayat, the territorial area of a Panchayat, territorial constituencies, are to be a understood as the Constitution says so. The emphasis which has to be paid by the Legislature of a State, is to provide for the composition of a Panchayat and not divert its attention to manufacture an area by population. This aspect will be explained hereinafter.

(73) IF Panchayat is to be provided for at the village, intermediate and district level, the Act must either become a composite legislation or co-ordinate with another legislation, which provides for the Panchayats at the intermediate and district level. The other legislation is the 1961 Act. If an area of a district under the 1961 Act has been specified as a Khand, the link will never be complete, unless the Act co-ordinates the administration in such a manner that each Panchayat area is divided into territorial constituencies, but within the "district". The concept "district" has been explained in the Constitution in Art. 243 (a). It says: "district" means a district in a State. " Logically, this implies that all Panchayat areas or territorial areas of Panchayat shall fit into a district. The Constitution enjoins that there will be a link between the village, intermediate and district level (Art. 243-B). But, the Act has made no provision how this definition will be projected in creating territorial constituencies as a piece cut from the cake of a Panchayat area which, in fact, will be synonymous with the territorial area of a Panchayat.

(74) ARTICLE 243c intends the manner in which the Panchayats would be composed. The heading is composition of Panchayats. Sub-clause (1) permits the legislature of a State, by law, to make provisions for composition of a Panchayat. But, one needs to be reminded that the composition is subject to the provisions of the Constitution of India. The proviso to Article 243-C refers to a ratio between the population of a territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by elections, as far as possible to remain the same throughout the State. Population and the ratio of representation is not to be seen in isolation. The population is in reference to a territorial area of a Panchayat and the number of seats in that Panchayat.

(75) THE next step is the territorial are of a Panchayat Both these expressions panchayat area and territorial area of a Panchayat are to be found in Art. 243. In this regard, Art. 243 which defines panchayat area reads: (c) "panchayat area" means the territorial area of a Panchayat;"

(76) BY the Constitutional Amendments, a Panchayat area simply means territorial area of a Panchayat, but in the State Amendments, the meaning is coming out otherwise.

(77) UNDER the State Act, the State Government goes around finding details to fabricate them into Panchayat areas or manoeuvre the territorial area of a Panchayat. This is not to be. If the basic idea is clear on what a Panchayat in in its simplicity, then, mistakes or aberration would not happen. The charge against the State Government today is that areas for a Panchayat have been created. The Court is not going into the details of these matters. In a low density village when the concept of a Panchayat has to descend as a unit of administration, then, it is understood that the orientation of the nation is that the village will have a Panchayat of not less than five people. There ought not to be a Panchayat of less than five people. If this is the base, then any ascending population found in a village whose representation to a Panchayat is to be considered, more than five persons may represent the people of the village also in an ascending ratio correlating it to the population in the territorial constituencies of a Panchayat. This will ensure that the ratio of representation of the population from any territorial area of a Panchayat will be, as far as possible, the same. What the State Government did was put the pyramid upside down. It first found villages with a population of about a thousand, thereafter, it carved out territorial constituencies of a Panchayat. In this exercise, villages were split up, they were aligned with revenue villages, natural barriers were disrespected, and sentiments, emotions and identities of people from villages were hurt. The State enactment cannot proceed with a preconceived notion that for the purpose of constituting a unit of village administration, whether it is a Gram Sabha or a Panchayat, or, for that matter, a territorial constituency of a Panchayat area, in a representational matter in elections, the balancing will be done with villages to be grouped, with a present idea of a particular demarcated population. This is against the spirit of the Constitution. It is against the concept of a Panchayat Raj. It hurts the self- respect of the villagers not to be able to self-determine the unit of their administration.

(78) IN the declaration of a Panchayat area for the composition of Panchayats, the Act has made a fatal mistake. When self-government was being guaranteed by the constitutional amendments, two changes had been brought into the Constitution. Buy inserting Part IX and Part IX-A, the Constitution of India made and ensured the continuance of self-government, never to be eroded or superseded. Part IX was in referenece to self-government in rural areas; Part IX-A was in reference to self-government in urban areas. What the municipality as a constituent of self-government is for urban areas, likewise a Panchayat is for the rural areas. Where the Constitution has to specifically say so far urban areas, it in no uncertain terms, limited the territorial area of a municipality to a population of three lacs or more, if it was to have a Ward Committee. But, for the composition of the Panchayats, the Constitution of India did not indicate a specific population so as to limit or curtail the Panchayats to less or excess of population at the villages. Instead, the Constitution referred to the territorial area of a Panchayat to become a Panchayat area and the representation to the Panchayat was to be by a ratio which would, as far as practicable, be the same throughout the State. The first logical step for the composition of the Panchayat was to identify the territorial area of a Panchayat. This identification could not be qualified by population. Population would only become the basis of a ratio for representation to the Panchayat. If every Panchayat receives a specified area, to be known as the "panchayat area", which, in effect, means "the territorial area of a Panchayat", the entire jigsaw puzzle of breaking down the entire rural area of the State into the Panchayat areas, is facilitated, without any problems, in the setting up of the institutions for self-government. The only two aspects which the State may, by law provovide with respect to the composition of Panchayat, is to provide for the area, i. e. , the territorial area of a Panchayat, without unduly being inhibited on what may be the population in it. This, in itself will ensure that such Panchyat area is contiguous to the others. This will further ensure that the village are not broken upto be put half in one area and the other half in another, as only a meticulous survey meticulously conducted will carve out the Panchayat areas, the boundary of which will be strictly defining such areas circumscribing villages contiguous to each other, in a given Panchayat area, which, in turn, will be contiguous to the Panchayat area next to it.

(79) SECTION 11f, as was inserted by amendment to the Act, thus, contradicts the Constitution to go beyond a concept of creating a Panchayat area on the basis of population instead of identifying the area itself. Thus, Section 11f, insofar as it links a Panchayat area to population, is against the concept of the composition of Panchayat areas, as mandated in Art. 243-C of the Constitution of India.

(80) FURTHER, in that very section, for certain areas of the State, in the second proviso, while providing for Panchayat areas in the hills of Uttar Pradesh, it referred to creation of a territorial area of a Panchayat to be encircled by distance. Whereas the Act mentioned a radius of 5 Kms. or a diameter of 10 Kms. , this measure of demarcation was amended right at the time and midway when hearing of the cases where taking place, by changing the radius of 5 Kms. to 1 Km. and the diameter of 10 Kms. to 2 Kms. The contradiction in the composition or declaration of Panchayat area is writ large in the Act itself; whereas for one part of the State it is on the basis of the population in another part of the State, it is on the basis of geographic distance.

(81) THE solitary question is whether the Constitution has given the yardstick for two criteria to exist simultaneously, i. e. , to carve out a Panchayat areas and limit it by geographic distance as also fix the population and then, manufacture the Panchayat area. The Constitution, under Art. 243c, has, in no uncertain terms, desired that the Panchayat area means the territorial area of a Panchayat. The representation of the area of the Panchayat is to be balanced by a ratio in reference to its population. The State enactment mixed the two situations. While going into the exercise of setting up the Panchayat area, the only factor which has to be kept in mind was that a territorial area of a Panchayat was to be demarcated. Once this was done, the representation to the Panchayat would be on the basis of the population within it, except for the fact that this representation would be in a ratio, which is common to all the Panchayat areas within the State.

(82) FROM the above, it follows that only this exercise of demarcating the territorial area for its expanse would harmoniously blend in the representation of a Panchayat or a Gram Panchayat on the basis of the ratios provided for the purpose of representation which, increases in an ascending order as the population increases, or otherwise should it decrees.

(83) BUT, as provided in the Act, the representation which rests on and has its premises to establish Panchayat area beginning with grouping of villages having population of one thousand, is an error. One the Constitution has made it clear that a Panchayat area means a territorial area of a Panchayat, one cannot rule out the possibility that there may be a village, the population of which is less than five hundred and yet its area may be the same as a village having the population of two thousand. The identity of both the villages is to be respected without any overt attempt to force or push one village to fuse itself into another, unless the act is voluntary and is self-determined by the people. To that extent Section 12 disrespected smaller villages whose population may be much below one thousand, as for such villages also a ratio of representation to the Panchayat, i. e. , the Gram Panchayat, needs to be, determined.

(84) THE ratio is in reference to a representation of the territorial area so that the representation of the people through their elected representatives, throughout the State, is to be on the same pattern. Sub-clause (2) of this article says that the seats in a Panchayat will be filled by persons, chosen by direct elections from the territorialconstituencies in the Panchayat area. The sub-clause further says that each Panchayat while it is being fragmented into further constituencies (the word used in the Constitution is divided) will be undertaken in such a manner so that the ratio of the population of each fragmented constituency and the number of seats allotted to such fragmented constituency also remains, as far as possible, the same throughout the State. Article 243-C, on the composition of Panchayats, simply means that the ratio between the population of the Panchayat area and of the number of seats of the divided territorial constituencies in that Panchayat area, to be filled by elections, should have the same pattern, as far as possible, throughout the State. This Article further implies, at the expenses of repetition, that as the Panchayat area itself must be uniformally represented, it shall be divided further so that each area so divided, as far as possible, carries a ratio of representation which is the same throughout the Panchayat area.

(85) IN the Act, in this regard, it is found that by an amendment, Sec. 11f, straightway makes a declartion, by notification of a Panchayat area on the basis of population of one thousand. The sanction to do this is unexplained. That it is to be declared, is implying the intention of the Constitution. Under the Constitution, in its simplicity, a territorial area of a Panchayat has to be carved out. If the State Government intended to carve it out on the basis of population, the basis on which it was intended, is conspicuous by its absence in the Act. This has created cofusion. If the simplicity, as suggested by the Constitution would have been kept, in all probabilities these writ petitions would not have been filed.

(86) UNDER the Constitution, the criterion to declare a Panchayat area is in special reference to aterritorial area, and area by terrain. In the Act, a demographic concept has been taken. The representation of an area, has to be balanced to the ratio of the population to the area. Territorial constituencies are sub-divisions of a Panchayat area. A densely populated Panchayat area will automatically contain more seats while a sparcely populated Panchayat Area will contain lesser seats than the densely populated area. Territory simply means the confines of a periphery of any particular area. The Panchayat area, as the Constitution desires, it is, to be bounded by geographical space. If this had been done, in this regard, the entire geometry throughout the State of U. P. would have been fitted into villages being specified, in the emergence of the Gram Sabhas, to be followed by the declaration of the territorial area of a Panchayat, and then, a Gram Panchayat would either have a direct nexus with a Gram Sabha or in exceptional circumstances, it may cater to one Gram Sabha. But, all these administrative pyramids were to be provided, if not by the Act, then by the rules. But, providing for them should have been, an exercise in excellence. This could not be the subject matter of circulars and, even if they could be, the exercise could only be excused provided the pattern fits into the variations demanded by the Constitution of India. The pattern which has been brought in, particularly in reference to the village, Gram Sabha and the Gram Panchayat and the administration of it, is not compatible with what the Constitution desires and intends. Balancing the ratio of the population in its representation to the Panchayat:

(87) ONCE the State Government had the Constitutional amendments before it, then, in balancing the ratio of the population in the territorial constituencies so that the representation to the Panchayat as far as practically remains the same for all the territorial constituencies, could not be seen in isolation of the number by which all the Gram Sabhas (consisting of persons registered in the electoral rolls relating to a village) will see representation to the Panchayat throughout the State. Allocating representation to a Panchayat area and balancing the representation to the ratio of population in the territorial are of a Panchayat and ensuring that the ratio in the other territorial areas, or, for that matter, the ratio of representation between the area and the population remains the same, is a principle which is given in the second part of the subject dealing with the representation to the House of the People or the Legislature. In this regard reference may be had to Art. 81 and Art. 170 of the Constitution of India. Article 81 deals with the composition of the House of the People. Article 70 deals with the composition of the Legislative assemblies. The harmony between the the articles is that the Constitution has prescribed that whereas the House of the People shall not consist of more than five hundred, and thirty members chosen by direct election, Article 170 provides that the Legislative Assembly in each State shall consist of not more than five hundred and not less than sixty members chosen by direct election in the territorial elections in the State. This including other representations in the House of the People and the Legislative Assemblies. The genesis is that in the first part of the either Art. 81 or Art. 170, the Constitution has ensured that the number of seats available either at the House of the People or the Legislative Assembly would not exceed the prescribed number. In the State Assembly, the Constitution, also prescribes that it would not be less than a certain number. The second part of these articles dealing with the number of balancing of population and the ratio of the representation, to ensure that they remain the same throughout the State or the teritorial constituencies within the State as the case may be. An excellence of approach would be that the State Government must first find out and declare the seats available in each Panchayat area. The balancing of the ratio with the population of a territorial area would follow the first aspect. This has not been done in the State legislation after Constitutional amendments.

(88) THE Constitution of India desires, expects and directs, each district in the State to be given Panchayat areas. These areas should, then, be divided into contiguous territorial constituencies. The representation from territorial constituencies shall be such that the ratio between them would be the same throughout the Panchayats in the State. All this considered, the basic feature of respect for the village and in born Gram Sabha would be retained on the principle of self-determination.

(89) IF the contention of the State Government, as it defends itself in the affidavits, is that they are prepared to hear the people on survey of the population in the Panchayat area, the mechanics of its representation, not excluding due weightage left for represenating the scheduled castes, and schdeduled tribes, or, for that matter, other backward classes, then, it is implied that if the State Government is really serious, the entire aspect of the survey, listening to the people, considering, their objections, meeting the objections with facts is an exercise which will have to be undertaken de novo. On 21 Sept. 1994, during the course of hearing, a gazette notification was published under the U. P. Panchayats (Determination and Publication of the Number of Persons Belonging to the Backward Classes) Rules, 1994. This notification is a count down on the number of persons belonging to Backward Classes in the district. It was published a few days before the elections. Any objections which have to be filed can only be under the rules, but, on the basis of facts of survey of the population.

(90) SOMEWHERE down the line, the State Government did take this aspect into consideration in giving due respect of to the erstwhile Gaon Sabha and their views and to permit them to consider whether as a Gram Sabha they would represent, a village or a group of villages. In the matter relating to reconstitution/delimitation of the Gram Panchayats a meeting of all the respective District Panchayat Raj Adhikaris was being called by a circular of 28/06/1994, to convene on 7/07/1994. This circular also intimated the District Magistrates that in the matter relating to reconstitution of the Gram Panchayats, the views of ex-Members of the Legislative Assembly be ascertained and sent to the Director, Panchayat Raj, U. P. It is in this circular that there is a post script endorsement for the District Panchayat Raj Adhikari that affected Gram Sabhas be intimated and the views sought by the Director, Panchayat Raj, U. P. This alone shows that the State Government almost came near to seeking the views, of rural citizens who were registered in the electoral rolls, but, no sanctity was given to ascertain their views on the matter of recognising their habitats, its consequential existence of correlated Gram Sabhas and the composition of their Panchayats. It is on record that more emphasis was laid to seek the views of the ex-Members of the Legislative Assembly, but, not the people who were to form the first nucleus of local self-government in the Republic. This was the first mistake which is affecting the very root of the exercise of the proposed elections in the villages to elect Panchayats for them. The elections, in any case, have to be held as there is no escape from it as it has become the basic feature of the Constitution that Parliamentary democracy in India will always have its base at the grassroot level in the Panchayats of the villages.

(91) FROM hereinafter begins the misunderstanding amongst those in administration in mixing alignment of delimitation for the purposes of elections by assuming and presupposing that it was a procedure for prescribing the Panchayat area for the composition and the jurisdiction of a Gram Panchayat. The procedure for prescribing an area for a Gram Panchayat is not to be confused with the delimitation for the purposes of elections. The election is for many matters. The machinery of election will identify the electorate within the Gram Panchayat and hence the members who will constitute the Gram Panchayat whose jurisdiction will be in a Panchayat area and yet every person who is a member of the Gram Sabha, will, inevitably, have to be one of the electorates who cast their vote as a constituent of the Gram Sabha itself.

(92) THAT the people may agree that the Panchayat area may be delimited and simultaneously the territorial limit for the election of a member is a possibility. But, for that, the consent has to be given by the people by resolutions of an adult franchise amongst persons registered in the electoral rolls as a body of the Gram Sabha comprised within the area of the Panchayat. And, yet, for the purposes of even an election, the territorial constituencies will have to be co-ordinated to fit into a Panchayat area. Duration of Panchayats and tenure of existing Panchayats:

(93) FIRST and foremost, before elections to the Panchayats take place, the amendments to the Constitution provide for the duration of the existing Panchayats, unless sooner dissolved by a resolution of both the Houses of the State Legislature. In this regard, a reference o Art. 243n on the continuance of the existing laws and Panchayat is not only relevant but cannot be overlooked. Now, what the State Government did was that by a Notification No. 1972/xxxiii-1-94-9g-89 dated 15/04/1994, totally conscious of the Constitutional Amendments, under sub-cl. (2) of Section 12, prior to its amendment, extended the term of the Gaon Panchayats upto 23/04/1995, or till the Constitution of new Gram Panchayats, whichever is earlier. On behalf of the State, it could not be explained to the Court how the Gram Panchayats will give way to their incoming constituents as a consequence of the elections which have been announced, and, thus, the expression whichever is earlier will hold. If powers were to be exercised under Section 12, as it stood before the amendments to the Constitution of India, these powers were only in reference to the matter of the extended term. Curtailed terms of the Panchayats all over the State is not the extent of the power, of the State Government but of the Houses of legislature.

(94) THE complete answer has been given in the Constitution of India, by the Constitution (Seventy-Third Amendment) Act, 1992. If the State Government had rightly or wrongly extended the term of the Gaon Panchayats for another year to function until 23/04/1995, then, to curtail these terms can only be by one method. This is prescribed in Art. 243-N. A resolution in both the Houses of the State Legislature dissolving the Gram Panchayats and putting the registered electorate of the Gram Sabha to elections to go to vote and bring in, by exercising adult franchise, their representatives into the Gram Panchayat on the result of an election. The elections, of course, would have to be conducted in such a manner so that between the last term of the members and those who come now more than six months ought not to pass. But, when the Houses of the State Legislature are not sitting, the State Government cannot announce an election as the Constitution of India does not permit it to. The State Government, thus, must either wait for the term to expire and, if yet it desires to curtail the tenure of the Gram Panchayats, must wait for the Assembly to convene to dissolve the Gram Panchayats, by a resolution to be passed by both the Houses of the Legislature and depending upon the result and the decision of both the Houses of the Legislature, will depend the programme of elections. The Constitutional Amendments had been inserted not without purpose and cause. The very intention of the Constitution of India was to entrench local self- government and prevent the switch on and switch off of self-government, whether at the village level or the local bodies in the urban areas. Those days are gone now. Elected representatives functioning as part of the local self-government have come to stay and their tenures cannot be curtailed, except for a cause, and not by extra statutory and unconstitutional methods.

(95) THUS, the announcement of the elections in the manner in which it has been done and it does not matter even if it is postponed, without the sanction of the Legislature is ultra vires to the Constitution and the Government of State of U. P. , if it desires to curtail the term of the Gram Panchayats, will have to face both the Houses of the State Legislature and seek sanction from the elected representatives of the people in both the Houses, aforesaid.

(96) THE State Government had announced the elections by notification, dated 31/08/1994, and yet has done it again. This necessarily implies that the dissolution of the tenure of the existing Panchayats would come to an end on the election of a new Panchayat, should the elections be held as announced by the State Government. Under the Constitution of India, the Panchayat has been given a tenure. The duration of the Panchayats is five years, unless sooner dissolved by any law for the time being in force. The issue, then, is of the duration of the Panchayats before the amendments were caused to be made to the Constitution of India, the curtailment of the term of the Panchayats, the dissolution of the Panchayats, if it is possible and the consequential elections for bringing new Panchayats, but, without the existing one being dissolved by the two Houses of the State Legislature.

(97) ARTICLE 243-E of the Constitution speaks of the duration of Panchayats. It reads: "243-E Duration of Panchayats etc.-

(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.

(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).

(3) An election to constitute a Panchayat shall be completed- (a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided, that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not, be necessary to hold any election under this clause for constituting the Panchayat.

(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved. "

(98) ARTICLE 243-N of the Constitution refers to the continuity of the existing Panchayats. This Article reads: 243-N. Continuance of the existing laws and Panchayats.- Notwithstanding anything in this part, any provisions of any law relating to Panchayats is in force in a State immediately before the commencement of the Constitution (Seventy-second Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State. "

(99) AT present the Court is not so much concerned on what would be the tenure of Panchayats when an election does take place in pursuance of the amendments to the Constitution of India, particularly, in the matter relating to the Panchayats under Part IX. In short, the duration of the Panchayat, now, under the Constitution, has been guaranteed for five years, unless sooner dissolved by a law for the time being in force. This is mentioned in Art. 243-N itself. This Article also observed that no amendment in any law would have effect of dissolving a Panchayat functioning immediately before the Constitution amendment till it is permitted to live its term. An election, of course, is to be caused immediately but, before the expiration of the duration of the Panchayats, but, in no case, beyond six months of the date of dissolution.

(100) NOW, the question of existing Panchayats prior to the amendments to the Constitution: The Constitution does make a provision under Art. 243-N that all the Panchayats existing immediately before the commencement of the amendment to the Constitution, would continue till their duration comes to a close unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State and, if the State has bicameral Legislature, then, by each Legislature of the State. Applying the stipulation of the Constitution, it means that the tenure of the Panchayats before the commencement or on the applicability of the amendments to the Constitution, would not be disturbed for the period of their, duration. This duration can be cut short by a resolution of both the Houses of the Legislature. If the Legislature does not pass a resolution and has not had the occasion to pass such a resolution, the term of the Panchayats cannot be curtailed by the State Government. Immediately when the Constitutional amendments had been incorporated but had not taken effect, the State of U. P. had extended the tenure of the Panchayats otherwise drawing to a close on 23/04/1994 and extended it by another one year. Once this was done, the duration of the existing Panchayats could be put to an end only by two methods. Firstly, permitting them to outlive their tenure failing which only the Legislature could dissolve the Panchayats by a resolution in both the Houses. The act of the State Government, by implication, in dissolving the Panchayats and putting the electorate of a Panchayats area to an election is an act which is ultra vires to the Constitution. The State Government has not been invested with either of these powers or sanction to put an end to the duration of the existing Panchayats which had been extended for a period of one year w. e. f. 23/04/1994, to keep the term until 23/04/1995. The term can only be curtailed by a resolution of each Houses of the Legislature failing which the Panchayats shall continue and an election can be called only immediately after the expiry of the term, but, the void cannot remain for more than six months after the term expires or until it is dissolved by the resolution of each Houses of the Legislature, whichever may be earlier. Thus, the question of calling the elections in executing the life of a Panchayat is not within the acts of the State Government. The State Government has to wait for their normal tenure to come to end. The normal tenure can only be put to an end by both the Houses of the Legislature by a resolution. The question of calling an election prematurely or, for that matter, postponing the elections by notification dated 24/09/1994 was a frustatingly redundant exercise on which the State Government had never been invested with any power under the Constitution. This notification dated 24/09/1994 postponing the election, which election the State Government had never any power to convene, is itself an abuse of show of powers. This notification cannot be permitted to remain. The State Government will, in accordance with the Constitution, either wait for the end of the tenure of the Panchayats or wait for a resolution to be passed in both the Houses of the Legislature to dissolve the Panchayats for the consequential elections. There are not short cuts to this method. Defects in the machinery: Administration and election:

(101) THE State Government admits that there are defects in the machinery which was to conduct the elections and the complaints of the electorate have gone unheard.

(102) THAT the State Government was rushing into elections without preparation for it and the elections would have been an exercise of a wasteful public expenditure is a matter of record without issues on it. The State Government had admitted in its counter affidavits that there are aberrations to be removed; that in view of certain representations it has received, on review it has been found that they are correct in their complaints; "that it would issue orders to the respective District Magistrates or any other authority which this Honble Court may direct for disposal after hearing of the representations". It is also averred in the counter-affidavits that the State Government will issue instructions immediately to get the aberrations, if any, rectified within a certain time frame. This was stated in the counter-affidavit of the Special Secretary, Panchayat Raj Department, Government of Uttar Pradesh, sworn on 4/09/1994.

(103) ANOTHER counter-affidavit was filed on 16/09/1994. In this counter-affidavit propositions of law had been given. In this counter-affidavit it was also mentioned that directions were issued to the District Magistrates to carry out the programme of the amendments to the U. P. Panchayat Raj Act, 1947 with speed and that all District Magistrates had implemented the necessary instructions in the best possible manner. In this counter-affidavit, the submissions made in the earlier affidavit that the existing aberrations will be removed is reiterated. A time table to remove them was again reiterated. The suggestion during which the anomalies and the aberrations will be removed are reproduced below: "that, it is stated that in order to mitigate the anxiety in this regard the deponent on behalf of the State Government undertakes to get the order issued immediately to the respective District Magistrates or any other authority which this Honble Court may direct for disposal after hearing of the representations. The direction shall also be caused for affording the opportunity of proper hearing, and deciding them on the basis of the provisions of law and instructions issued earlier, in this regard in the following time frame:

1. Placing before the Authority the copy of the representation annexed with the petitions 3 days from the date of order of this Honble Court

2. Hearing and decision by the District Magistrate/ or the authority to be specified by this Honble Cour 3 days from the date of placing the above mentioned representation

3. Sending the amended proposals, if any, of Panchayat areas for notification in the Gazette 1 day after the decision

4. Publication of amendments, if any, by the Director of Panchayat Raj in the official Gazette 1 day. "

"26. That, in view of the stupendous exercise undertaken for the reorganization of about 74 thousand Gram Panchayat areas, if any aberration is alleged, the State Government is deeply anxious to remove these aberrations as per the terms detailed in the affidavit filed on 14-9-94 by the deponent which is reproduced hereunder. "that, it is stated that in order to mitigate the anxiety in this regard the deponent on behalf of the State Government undertakes to get the order issued immediately to the respective District Magistrates or any other authority which this Honble Court may direct for disposal after enquiry into the grievances of the representations. The direction shall also be caused for affording the opportunity of proper hearing, and deciding them on the basis of the provisions of law and instructions issued earlier in this regard in the following timeframe: 1. Placing before the Authority the Copy of the representation annexed with the petitions 3 days from the date of order of this Honble Court 2. Hearing and decision by the District Magistrate/or the authority to be specified by this Honble Court 3 days from the date of placing the above mentioned representation 3. Sending the amended proposals, if any, of Panchayat areas for notification in the Gazette 1 day after the decision. 4. Publication of amendments, if any by the Director of Panchayat Raj in the official Gazette. 1 day. "

(104) A third counter-affidavit was filed in which on behalf of the State Government it was stated that instructions have been issued to all the District Magistrates to invite objections against the reorganisation and delimitation of Gram Panchayats and territorial constituencies respectively. The specific statement in the counter-affidavit would be best if reproduced

"2. That the State Government by its order No. 4793 / 33-1-94 dated 16-9-94 have directed all the District Magistrates to invite objections against the reorganisation and delimitation of Gram Panchayats and territorial constituencies respectively between September 18 to 20 and for their disposal after careful consideration in accordance with the instructions issued by the Government in this behalf earlier, between September 21 to 24. The District Magistrates have also been directed that if after careful consideration of the objections thus received, the earlier proposals need any amendment, they shall be amended and renotified by September 24 and 25. A copy of the G. O. dated 16-9-94 is annexed herewith and marked as Annexure C. A. 1 to this affidavit. "

(105) THIS counter-affidavit sworn on 19/09/1994 was virtually admitting that there was much to be looked into which had not been previously. But whatever will be looked into, will be done within eight days. This counter-affidavit records that throughout the State the people will be given an occasion to file their objections within two to four days and their objections will be disposed of in the next three to four days. The authority which will dispose them of will be the District Magistrate.

(106) THEN, came the supplementary counter-affidavit sworn on 23/09/1994 which gave a list of the Government Orders and notifications issued in the matter relating to the organisation of Gram Panchayats and the matter relating to the elections under the U. P. Panchayat Raj Act, 1947 for the return of the elected representatives to the Gram Panchayats. A brief resume as has been placed by the Court in the preceding paragraphs alone shows that the State was admitting that the people had not been heard and the prospective candidates, or the Pradhans or the Gaon Sabha, as are continuing (now Gram Sabha), had much to say and there was no one to hear them and, further, the State Government was not even sure whether it had identified the authority where the grievances would be heard. The State Government, instead was asking and requiring the Court to indicate the authority.

(107) BUT, the High Court does not legislate in matters of judicial review before it in its writ jurisdiction. The High Court only certifies the action as correct or incorrect or, at best, if incorrect, the serious nature of the irregularities or illegalities and if the legislation itself is ultra vires to the Constitution, then, to declare it so. In the beginning, the High Court tried to ignore any minor irregularity that may exist in the matter relating to the conduct of the elections as it is not every irregularity, the High Court must interfere in.

(108) BUT gradually it became clear that the State Government had not even organised the administration of the Gram Panchayats, in accordance with the amendments to the Constitution by the Constitutional Amendment Act and unless local self-government as was envisaged by the Constitution of India is not entrenched in its foundations, carrying out a farcical election would be a farce on the Constitution. But, the elections ought not to be delayed nor legislating a correct machinery in the true spirit of Panchayat Raj as the Constitution of India desires it. While this aspect had yet to be taken care of, the State Government was announcing an election schedule and yet had not fallen in line with the Constitution to take care of the structure of Panchayats as institutions of self-government on specifying villages, consequential existence of Gram Sabhas, composition of Panchayat, their territorial area and constituencies and all incidental matters, like demographic alignment of village administration co-ordinating with the topography of a particular area, giving due regard to the different terrains and climates in the State and it cannot be said that in this State there is no diversity in the climates and also diversity in the ethnic composition of the peoples of the State which demand variation in their aspirations from various parts of the State. There are natural barriers in the State which are hostile, if nature itself, is to be respected in clubbing more areas than necessary. The plains of the State have villages which are spread out and need imagination, if a conglomeration is to be identified as a village and if as far as possible the nucleus of their administration is to be compact. And, yet the picture is entirely otherwise in this hills of the State where there are hamlets and between one hamlet and another there is either a hill or a valley and a conglomeration of villages separated by spurs, valleys, ridges and deep forests is a concept which may not work. The demography of the hills varies with its people. While women work and labour and till the soil, the men are away in the plains to supplement the income of the families. They return to the plains if election is their call, provided, they have adequate notice. There are many men who work in the armed forces and to cast a vote if you are in the armed forces itself is a special procedure provided, one has adequate notice to exercise ones franchise, when serving with the armed forces. And, from the hills a sizeable number does. The means of communication are entirely different in hills than the plains. If distances are measured in the plains, in the hills it is reckoned with time. What one would cover in three hours on plains it would take six hours in the hills. The fabric and the social structure of the society of this area is entirely different, than on the plains. Likewise, the composition of their Panchayats would also be different.

(109) THESE large number of writ petitions, all under the subject of setting up self-government and consequential elections to the Panchayats, are grievances of rural citizenary that all is not well in the manner in which the administration for Panchayats is being set up by the State Government. Consequently, it is asserted, the prelude to the elections as announced are bad, irregular and illegal. All these writ petitions can be broadly put into nine categories. A brief summary of the complaints in each group needs to be recorded, as that, for the context of matter is the pulse of the people.

(110) ON the basis of these, the grievances of the petitioners in the various petitions, in short, were indicated as below: I. Geographic additions and defections of the territorial area of Panchayats have inconvenienced village population:

(a) Between the villages grouped and within the same Panchayat area there are nalas, canals, or rivers;

(b) Distance between the villages and the constituted Panchayat vary-from 2 Kms. to 20 Kms. :

(c) There is no road connecting the villages with the Gram Panchayat;

(d) One part of the village has been added to one Panchayat area and the remainder to another Panchayat area;

(e) Even revenue villages have been split, with the agricultural holdings in one Panchayat area, and the habitat in another;

(f) Villages undertaken into the last census survey of 1991, have been omitted and not assigned any Gram Panchayat;

(g) The population as at the time of survey for specifying villages, Gram Sabhas, or announcing Panchayat area should be taken into account and not the 1991 census, without being updated.

II. Gram Panchayats and Panchayat areas, or villages have been established or lost their identities on the extra statutory and illegal interference of political leaders, without consulting the people of the villages or hearing them, on the concept of self-determination on the identity of their villages, which exercise is against the spirit of self- government guaranteed by the Constitution of India.

III. Carving out of Panchayat areas, otherwise the territorial areas, of the Panchayats or dividing them into territorial constituencies has been settled and finalised with Members of the Legislative Assemblies, past or present, and other political leaders, when these aspects of identifying administrative zones or delimitation of constituencies for the purposes of elections, is to be finalised after ascertaining the views of the people of villages. This exercise has eroded the concept of enabling Panchayats to function as institutions of self-Government.

IV. Even the guide lines or circulars issued by the State Government, from the month of May, 1994 have been violated by the Government itself, when(a) existing Gram Panchayats having a population of more than 1000 even according to the 1991 census have split and bifurcated a village or added villages to one having more than a population of one thousand;

(b) Gram Panchayats have not been named after the village having the largest population;

(c) Areas of a Town Area have been extracted and attached to a Gram Panchayat;

(d) There is no contiguity between villages of one Gram Sabha nor of a Panchayat area. In between, are other villages which belong to another Gram Sabha or Panchayat area, and this has been occasioned for wrongful gain either by political parties or members of it, and any consultation or varying the identity of villages, consequential Gram Sabhas and Panchayat areas has not been had or done with a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level;

(c) No District Magistrate or his designated officials have paid any visit or inspection to ascertain the views and view points of people who are to be affected by the changes before giving effect to the changes mandated by the Constitution;

(f) Even the relevant rules nor information for the conduct of elections, or even categorising statistics for reservations or for declaring Gram Sabha of villages and Panchayat area have either not been made available nor published.

V. (a) Gram Panchayats have been reserved for Scheduled Castes/scheduled Tribes and Backward Classes and women on the basis of alphabetical order in the Devnagari script. This, it is contended, is against the provisions of the Constitution which prescribes rotation;

(b) In villages with ethnic concentration of Scheduled Castes and Scheduled Tribes, 50% of seats for Pradhans have been reserved for Backward Classes;

(c) Seats for reservations and merger of villages have been made with ethnic, religious and class bias. Gram Sabha with population of 1000 with majority of Hindus have been made to disappear and merged into villages with majority of Muslims;

(d) Reserved seats were not declared in accordance with the ratio corresponding with the population of Scheduled Castes/ Scheduled Tribes and Backward Classes;

(e) The percentage of seats for Backward Classes could not have exceeded the total seats of Pradhans (of Gram Panchayats and Kshettra Panchayats). The 27% seats reserved for Backward Classes includes males as well as famale members belonging to that class and no separate reservation could have been made for women member of Backward Classes.

(f) Villages have been reserved for various categories, but in such villages, as a matter of facts the population of general categories is more than the population of either Scheduled Caste/ Scheduled Tribe or Backward Classes;

(g) Certain Gram Sabhas, by natural consequences, have population where reserved population are negligible, but these villages have been merged with populations, predominantly having population base of Scheduled Caste/ Scheduled Tribe and Backward Classes.

VI. (a) Voter lists have been prepared relying on the survey prepared for the last State Assembly elections, and this is contrary to S. 9 (3) of the Act, as it excludes the names of persons who have attained the age of 18 years on 1/01/1994;

(b) Electoral rolls and the territorial constituencies have been made by dividing the population of Gram Sabhas by the number of houses as shown in the 1991 census which is contrary to as preparation of voter list population taken of the year 1994 whereas for Gram Sabha it was taken of the year 1991 (census report);

(c) The voter lists have hot been prepared by the Election Commission. VII. (a) In the matters relating to the hills of Uttar Pradesh, the criteria distance in identifying villages, Gram Sabha or Panchayat areas has been ignored and emphasis has been laid on the basis of population;

(b)Gram Sabhas with sparse population have been left untouched and those with higher density of population have been merged with other Gram Sabhas.

VIII. Notification on the delimitation of the boundaries of Gram Sabhas has not been made available.

IX. Resolution passed for the change of names of Vikas Khand/ Gram Panchayat has not been respected nor given effect to.

(111) ONE thing was not understood by the Court that while the State acknowledged that there were many matters which were yet to be considered why was a compact time schedule of eight days was "given to remove all the aberrations" before the elections as were scheduled. If there were no complaints or grievances to be considered, then, why take half-hearted or shabby paths to election with defective and incomplete legislation. Otherwise, the State should have confidence to tell the Court that it is ready for the elections and yet if there were complaints, grievances, representations, anomalies or aberrations as the State calls it, then could all this be taken care of within eight days by which time the State could inform every person who could exercise adult franchise in these elections to file their complaints and the head of the district administration could take care of these complaints, in whatever numbers they may have come, to be dealt with within three to four days And were not each one of the authorities at each level obliged under the law to satisfy themselves on the complaints of the people and then only make their requisite orders on additions, alterations on the objections of the people Further, did these complaints not relate to the defective structure of the administrative set up of conducting the elections After bringing in the amendments to the U. P. Panchayat Raj Act, 1947, as a consequence of the amendments to the Constitution of India, the State Government on 9/05/1994 by a notification No. 2334/33-1-94-149/94 delegated its powers under S. 96a of the Act to the Director, Panchayat Raj, Uttar Pradesh. The delegation was in reference to the matters under S. 3 and under S. 11f. S. 3 relates to "establishment and constitution of Gram Sabhas". This is under Chapter 11 of the Act. S. 11f is in reference to "declaration of Panchayat area". The text of the notification is very short. It reads:

"in exercise of the powers under S. 96a of the U. P. Panchayat Raj Act, 1947 (U. P. Act No. XXVI of 1947), the Governor is pleased to delegate the powers of the State Government under S. 3 and S. 11f of the said Act to the Director, Panchayat Raj, Uttar Pradesh, Lucknow. "

(112) THEREAFTER, by a letter of 12/05/1994, the Director, Panchayat Raj sent a circular to every District Magistrate. The subject of this letter: The establishment of a Panchayat area. But, the contents of the letter related to elections and the reconstitution of the Panchayat area. In this letter, the contents of S. 11f and S. 12 (1) (a) were repeated. Five directions were, issued for the District Magistrates. These were virtually matters which were extracted out of S. 11f. The directions given to the District Magistrate were, to the effect, that (a) for the reconstitution of the Panchayat area, no revenue village or hamlet should be divided, (b) such villages or hamlets should be reconstituted to form a Panchayat area as were geographically nearer to each other and if two adjoining villages are equally distant from each other then the one having less population was to be merged, (c) there must not be overlapping of two Gram Panchayat areas, (d) natural barriers between two villages, like a river or a mountain, should be respected so that access to such villages is not wanting, and (c) the village having the larger population while amalgamating with another village, the Panchayat area will be known by the name of the village having larger population. The District Magistrate were requested that the exercise indicated in the letter-should be completed by 12/06/1994. Along With the letter there were forms to collect data. So far there was no harm in energising the district administration to get ready for implementing the new pattern of village administration. Except, the last directive about making the identity of peoples in a smaller village disappear, was disrespect to them to avoid ascertaining peoples wishes and was against the concept of Government by the people, for the people and of the people.

(113) FOLLOWING the circular dated 12/05/1994 is the circular by the Chief Secretary of 23/05/1994. This letter reminded the District Magistrate that the Constitution (Seventy Third Amendment) Act, 1992, had given a new pattern to rural administration and thus, the U. P. Panchayat Raj Act, 1947 and the Uttar Pradesh Kshetra Samiti and Zilla Parishad Act, 1961 by the U. P. Amendment Act No. 9 of 1994 had made changes to the Acts, aforesaid, and that the changes had come into effect on 22/04/1994. Thereafter, the circular went on to say that the elections to the bodies in reference to the two enactments referred to ought to be done and steps are to be taken to implement the curriculum of elections immediately. Certain broad features of the amendments which had been brought in by the Constitution (Seventy-Third Amendment) Act, 1972 and the amendments as made (in reference to the context) to the Uttar Pradesh Panchayat Raj Act, 1947, were referred to in the circular. Even this is routine administration in asking the district administration that it must gear up to the changes in the law and prepare itself for the elections which now had become a necessary mandate of the Constitution of India and the changes which were brought to the U. P. Panchayat Raj Act, 1947.

(114) THERE is nothing wrong in orienting oneself to changes in laws and the administration is not an exception in this regard. But, mixing up establishing a new administration for self-government in villages and arranging for an election after a new administrative set up has been entrenched, are two different matters.

(115) BY the circular of 1/06/1994 when the, Director, Panchayat Raj reminded the District Magistrate in the State to the Circular of the Chief Secretary dated 23/05/1994, of the earlier circular of the Director, Panchayat Raj, dated, 12/05/1994, it was being indicated to the District Magistrate that all necessary steps relating to reconstitution and delimitation must be completed by 12/06/1994. The fatal error had happened. Firstly reconstitution of constituencies, or for that matter, delimitation of them, more so, in the rural areas where it is on record, there are seventy five thousand villages in 65 districts, was not a matter which can be done within 12 days in the blazing heat of a June summer to venture into a gigantic task to complete a survey on delimitation and constituting or reconstituting a panchayat area out of a village gaon sabha or of a group of villages. In the circumstances and constraint of time and climate, it was a task which was well neigh impossible. If it were to be done in twelve days, in a State, the size of Uttar Pradesh, the quality of the task, would also be affected with indifference. The result is there before the Court as the State itself has acknowledged that the task was not completed.

(116) THIS circular itself endorsed copies of the letter, to the Commissioners of the Divisions and the Regional Deputy Director, Panchayat Raj and the District Panchayat Raj Officers to ensure that work was carried on in accordance with rules and the requisite proposals should be forwarded to the Director of Panchayat Raj immediately. The relevant question was whether there any rules And, which proposals Was the administration in pursuance of the Constitution (Seventy-Third Amendment) Act, 1992 being set up Or, were villages being made ready for the elections with indifference to the Consitutional amendments. The next circular is dated 10/06/1994. It is from the Director, Panchayat Raj to the District Magistrates which reminds the District Magistrates of the earlier circulars of the Director, Panchayat Raj dated 12/05/1994, of the Chief Secretary dated 23/05/1994 and again of the Director, Panchayat Raj dated 1 June. This circular is Annexure 5 to the counter affidavit sworn on 23/09/1994. The subject of this circular is making arrangements of the seventh all State General Panchayat Raj election. The circular refers to the reconstitution of the Panchayat areas. The circular is announcing that the statistics of survey is to be made Tehsil-wise on the basis of the 1991 census report. The details of the electorates must be collected and published neatly and the information required should be ready by 16 June. In effect, the District Magistrates were required to complete the task in six days. On the new instructions, the letters were endorsed to the Commissioners of the Divisions, Secretary, Panchayat Raj and the State Election Commissioner.

(117) THE next letter is from the Deputy Director, Panchayat Raj, dated 18/06/1994. 13 The translation of it reads:

"most Important Ardh Shaskiya letter No. 3/sha. /477/94-3/22/94 Surendra Jai Narain Panchayat Raj Deputy Director Directorate (Panchayat) Uttar Pradesh Lucknow: Dated 18/06/1994

Dear Sir, Under the Government Letter No. 104/ S. P. F. /94 dated 16/06/1994 it has been directed that before finalizing the proceedings of reconstitution/determination, the suggestions/considerations of the concerned Legislators may be considered in the meeting. Hence you are requested to do according to the Government instructions. Regards, Sincerely Sd/- (Surendra Jai Narain) (By name)

13. Annexure 6 to the counter affidavit of 23/09/1994All the District Magistrates Uttar Pradesh No. 31 Sha. /377/1/94/same day

Dear Sir, The copy of aforesaid letter is being sent for information and necessary action. Affectionately, Sincerely Sd/- (Surendra Jai Narain) 1- (By name)

All Regional Deputy Director (Panchayat), Uttar Pradesh. 2 - (By name) All District Panchayat Raj Adhikari, Uttar Prdesh. " Related to the circular of 18/06/1994 is another circular of 28/06/1994. 14 translation reads:"fax /courier reconstitution/supreme Priority From, director Panchayat Raj, Uttar Pradesh. To All District Magistrates Uttar Pradesh No. 3/1059/94-3/22/94 lucknow: Dated 28/06/1994

Subject: In respect of Reconstitution/determination of Gram Panchayats. Sir, In reference to the letter of Directorate No. Sha. /477/94-3/22/94, Dated 18/06/1994 and letter No. 3/1058/94-3/22-94, dated 27/06/1994 in respect of reconstitution/determination, a meeting of all the Panchayat Raj Adhikari Uttar Pradesh will be held at Directorate level on 7-7-1994 in which the resolution will be finalized in respect of reconstitution. Please require the suggestions of Legislators in accordance with the letter dated 18-6-1994 before 7-7-1994 and send the same on 7-7-1994 positively.

Yours Sd /- (Jagjit Singh)

Director, Panchayat Raj, Uttar Pradesh No. 3/1059/1/94-same day. Copy to the following for information and necessary action:- 1 - All the Zilla Panchayat Raj Adhikari, U. P. , for sending information on proforma No. 1 of their respective district relating to affected Gaon Sabhaon in modified stage in six typed copies. 2 - All Regional Deputy Director (Panchayat), Uttar Pradesh. 3 - All Commissioner, Uttar Pradesh.

14. Annexure 8 to the counter affidavit of 23/09/1994.

(118) THE circulars of 18 June, 27 June and 28/06/1994 clearly show that whatever had to be collected on the matter of reconstituting the Panchayat area of the delimitation of it was left to the District Magistrates to be sent virtually within 15 days from the general circular of the directorate dated 1/06/1994. The previous circular of the Chief Secretary of 23/05/1994 may be said to be an orientation course of the changes which were brought by the Constitution (Seventy-Third Amendment) Act. 1992. Thus, it is on record that a mere lip service was paid in requiring the District Magistrates to do whatever was necessary and send information to the Directorate (a) for reconstitution of the Panchayat area and (b) the delimitation of it.

(119) WHATEVER information trickled into the Directorate, the District Magistrates were asked to settle the information and finalise it with the concerned members of the legislative assembly and their proposals/ advice be obtained by the District Magistrate and accordingly sent to the State Government. In reference to these, Particularly, were circulars dated 18/06/1994. 27/06/1994 and of 28/06/1994. By the letter of 28/06/1994, the District Magistrates were cautioned that the Director of Panchayat Raj had called a special conference and that the proposals and the advice of the concerned members of the Legislative Assembly should be available before 7/07/1994 so that the matter relating to the reconstitution/ delimitation of the areas of gram Panchayats could be finalised and sorted out. In the circular of 28/06/1994 there was a direction and, from this it is clear that the reform relating to the setting up of the administration for Panchayats, on the one hand, and the conduct of elections, have been confused into one and were being finalised, having hurriedly been obtained as a survey, otherwise from the District Magistrates. The final approval was being taken from the members of the legislative assembly who had been called for a conference at the Directorate of Panchayat Raj at the State capital. Approval was being sought for what Setting up local self-Government in rural areas after the amendments to the Constitution Or, arranging for elections without the set up Then, as institutions for self-Government, the views of the people from Gram Sabhas should have been ascertained not the Members of the Legislative Assembly. This was house-trading and that is what it turned out to be, and, likewise are the allegations in the writ petitions. It is in the Gram Sabhas where exists the body consisting of persons registered in the electoral rolls relating to a village. The Directorate rushed to obtain the survey in a State with almost more than 13. 91 crores population, the majority of it is in its rural areas. These all important administrative changes brought in by the Constitution of India for self-Government were being worked out within 15 days in a rush instead of carrying out an exercise of excellence. And, this is not all. The entire checker board for carving out Panchayat areas and delimitation of constituencies by the Constitution for election, without setting up the administration required, was being finalised not with the people of the Gram Samaj, as all concerned were there, but with the Members of the Legislative Assembly between 18 June and 7 July, another seventeen days. Thereafter, according to the State Government, it was ready for elections. Was it

(120) THE contention of the petitioner is that no data worth the name was available and whatever was collected by the State Government in a rush, all was settled by the State Government except with the people at the grass root level. Thus, whatever was settled and finalised, except with the "persons registered in the electoral rolls relating to a village" had no sanctity at all. It was contended on behalf of the petitioners that no amount of conference with members of the Legislative Assembly would give sanctity to the survey which may have been conducted by the State Government in the so-called Panchayat area or the constituencies, or, for that matter, the de-limitation of it.

(121) EVEN if one segment of data is missing before the State goes into the elections of the Panchayats, it erodes the base of the elections. The petitioners desire to know the basis of the data as none was available in the villages or even the office of the Block Development Officer, or for that matter, even before the District Magistrate. This position and state of affairs is acknowledged. The petitioners desire to know what was the basis on which reservation had been made It was indicated to the Court that it had been made on the recently passed rules known as the Uttar Pradesh Panchayats (Determination and the Publication of the number of persons belonging to the Backward Clases) Rules, 1994, A copy (repeat a copy) was appended as Annexure 3 to the counter affidavit. The petitioners wanted to know that, if these were rules, then, when was the Gazette published The State Government was embarrassed in not being able to place the Gazette itself before the Court. When the Counter affidavit was filed on 19/09/1994 the State expressed its inability to produce the Gazette, and it was mentioned on behalf of the State Government that the Gazette would be made available at the end of the day. At the close of the day on 19/09/1994 it was stated before the Court that the Gazette is yet to be traced. On the next day, the State Government was still searching for its Gazette which was not placed before the Court and it was submitted on behalf of the State Government that copies had been sent for and it was hoped that this Gazette would be available during the next day. Until rising of the Court on 20/09/1994, the Gazette could not be filed in the Court. The Gazettes were filed before the Court on 21/09/1994. On this, it was asserted on behalf of the petitioners that if the State Government cannot locate its Gazette, how can it expect the people of rural areas to find publications of the Gazette. Those who were complaining are the Pradhans, the Gram Samaj and its people. They say that all this relevant information is not available either with the Block Development Officer or the Tehsil Headquarter or, for that matter, office of the District Magistrates. The publication of the rules it was contended, was public information and it must be freely available to the people so that they know their rules and if the law permits them to object to have their objections considered, as the law obliges the State Government to hear the objections. The Gazettes, it was contended on behalf of the petitioners, saw a midnight publication and that the dates on them were antedated and there was no such thing as a publication of the rules on the day when they are attributed to have been indicated. The Court is making no comment on this except for the fact that it clearly appeared that at the bar of the Court, and beyond doubt that the State Government itself was having trouble in tracing its Gazettes. Whether the Gazettes had been antedated or not, the Court would not know. But, it leaves much to be explained as a measure of public accountability as to why the State Government could not append the Gazettes to its counter affidavit, but had to search for them.

(122) MANY petitioners vehemently made an issue in questioning the record or the state of the record from the statistics collected by the State Government, if any have been collected. The issue is on the aspect of compiling the data on the Backward Classes. The contention of the petitioner is very simple. They contend that the last census which is available to the State Government, at best, is of 1991. The information on this has been published by the State of U. P. through the Economic and Statistic Section, State Planning Department. Lucknow (Artha Evam Sankhya Prabhag, Rajya Niyojan Sansthan. Uttar Pradesh, Lucknow). In this survey, there is nothing available on compilation of data on Backward Classes.

(123) THE High Court itself keeps this information available as it is a public information, in its Library. The data now is also available as information through the computer. Particularly, when the demographic data was being sought from the Department of Census, in reference to Backward Classes, it was officially conveyed to the High Court that insofar as the information on Backward Classes is concerned, nothing is available in the said office. The reply from the Census office to the Additional Registrar, High Court, is reproduced below:-

"please refer to your D. O. No. 4095 / 1994 dated 28/10/1994 regarding the supply of data on floppy disks. New floppies (2) containing the data of Garhwal (Tho 5. 1), Chamoli (Tho 2. 2), Tehri Garhwal (Tho 3. 1) and Nainital (Tho 8. 3) are being sent herewith for the use at your end. If may be intimated that the Census Department does not collect the data regarding Other Backward Castes. Kindly acknowledge receipt. With regards,"

(124) THE question then does arise on the accountability of collecting statistics on population and make the public information freely available to the public. The State is answerable to the people in giving them the information they require, on how the data has been collected, for that matter, if any citizen desires to object or consider the data to be questionable, he has a right to do so. This is a public information. It cannot be kept a secret. No confidence has been shown in the defence of the State on the manner in which the data has been collected. This confidence seems to be shaken amongst the people that the State of U. P. otherwise accountable in parting with the information, on Backward Classes, or, for any other matter in relation to population is withholding it. How was the information on Backward Classes, collected, compiled and classified

(125) AND while an election was being announced by the State Government, which announcement was published on 10/09/1994, after an order of 31/08/1994, on 19/09/1994, the following rules were framed : "

1. The Uttar Pradesh Panchayat Raj (Computation of Five Years For Removal of Disqualification, Fixation of Period of Dues Etc. And Settlement of Disputes of Disqualification) Rules, 1994".

"2. The Uttar Pradesh Panchayat Raj (Oath of Office of Pradhan, Up-Pradhan, Panch, Sarpanch, Sahayak Sarpanch And Member of Gram Panchayat) Rules, 1994".

17 17. CA Sworn on, 23/09/1994 vide Annexures XVII and Annexures XVIII, respectively.

(126) AND while the election was barely six days away and during the pendency of this case on 23/09/1994 the State Government filed a Gazette of 21/09/1994 announcing that in 65 Districts of the State the statistical figures in pursuance of the Uttar Pradesh Panchayat Raj (Determination and Publication of the number of persons belonging to the Backward Classes) Rules, 1994, is being published. The publication may be a formallity, but, under the law, what exactly is the purpose for publishing it Since this publication is just before the elections, would it be available to the electorate to consider the correctness of the survey, file objections on it, and check its applicability to each Gram Sabha and the Consequential Panchayat area There was adamancy at the Bar of the Court on behalf of the State Government that whatever may yet have to be done, it will be completed before 29/09/1994, the date when the elections were scheduled. The Court had indicated to the representative of the State that there is much more that is missing in the eyes of the Constitution, than has been reckoned, in reference to the subject under discussion.

(127) EVEN, the aspect of hearing the people, i. e. , the electorate on their views, objections, amendments as may be suggested by them or the incorporation of corrections, to the various surveys in limiting the Panchayat areas, or the delimitation of constituencies for the purposes of elections, the manner in which the electoral lists, have been prepared, first without taking into account the reservations and, thereafter, bringing in the survey taking into account the reservations, is not a matter which can be done in six days. It may hold good technically to say that the people were heard, but the hearing would be a farce of the concept of devolution of powers and responsibilities upon Panchayats required by the Constitution of India.

(128) THE people who came to this Court, say that if this election, in the manner in which it has been arranged, goes through it will breed chaos and bring in more frustration, notwithstanding waste of public expenditure. Let the Court now examine and co-ordinate the publication of the survey of backward classes as placed before the Court on 23/09/1994, which, it appears, is a publication made in pursuance of the Rule 10 of the Uttar Pradesh Panchayat Raj (Determination and Publication of the number of persons belonging to the Backward Classes) Rules, 1994. This was done five days before the elections.

(129) EVEN if it is assumed that the publication of the rules was available to the public on the day when it was published, that is, 22/07/1994, certain schemes of things do not fit into the things to be done and ultimately what came to be done. The Gazette appeared for the first time of the Bar of the Court on 21/09/1994 as the State itself could not locate the Gazettes and in their counter affidavit filed only typed copies of a Government Order which was intended to be a notification. Despite being sought by the petitioners and the Court, the Gazette of 22/07/1994 could not be located even after much search. The Public wanted to know at which stage are they supposed to have information that the rules are readily available, repeat, readily available, for examining important factors which were to become a source of much issues, debate or controversies among the electorate. There is a difference between the guarantee which the Constitution of India gives on reservations to certain classes and the right of a citizen to have access to information on how this guarantee will be kept by the State. The logic of the two are not be mixed. Between a right claimed and a dissent on the right granted, while the Courts may arbitrate, in a democracy the State cannot deny a dissent to go unheard. If this were to happen, then, the foundations of an anarchy are being laid.

(130) THUS, between the Publication of a the survey on the existence of a particular class of an electorate entitled to receive reserved offices, the entire survey of the electoral populace must be ready and complete. Rule 3 for the determination of number of persons belonging to the backward classes itself stipulates "as survey would be conducted in the manner hereinafter provided".

(131) SUB-RULE (2) of this rule mentions that an Enumerator appointed for an area shall prepare a list of all the houses of persons belonging to be backward classes and will record a survey that all such houses have been included in the list, which list will be signed by the concerned Pradhan. Sub-rule (4) says that the population, as ascertained on the last preceding census of which the relevant figures have been published, would be the basis for the survey. It is a very pertinent question to reflect on how much time the exercise indicated in Rule 3, would take for an Enumerator to carry out his obligations. The exercise is, virtually, a count down of every member of the house and of every house in a village. For the time being, let it be forgotten whether the village is part of a Gram Sabha or a panchayat area. What is relevant is a systematic person to person and house to house indexing of people in their houses. It would not be unreasonable to suggest that this survey itself could take a month. But, with the best of efficiency, let it be understood that it may take fifteen days.

(132) UNDER Rule 4, after the list of the Enumerators has been published. It shall remain for public display on the notice board of the Kshettra Panchayat for seven days. By sub-rule (2) of Rule 4 objections to the list may be received within three days and these objections may be disposed of within three days of being received "by a written order by the Block Officer". Sub-rule (2) further says and if necessary the list shall be modified in accordance with such order. If the modification is found necessary then let it be assumed that the modification of the list which was hung at the office of Kshetra Panchayat would take another three days.

(133) RULE 7 mentions Supervisor over the various Enumerators for the areas "to compile a list on the basis of list prepared by such Enumerators". The compilation by co-ordinating the lists of the various Enumerators is a time consuming job and a list would take at least a reasonable time for the purposes of checking and crosschecking and even if one is in a hurry, ten days time for a Supervisor to co-ordianate the lists of the various Enumerators cannot be said to the unreasonable. The work of the Supervisors by Rule 8 has been placed under the Charge of a Block Officer, which, by sub-rule (2), the Block Officer is to dovetail the lists drawn by the Supervisors. The Block Officer is obliged to draw a list of the territorial area of the Kshettra Panchayat and in addition lists for the territorial area of every Gram Panchayat within the Kshettra Panchayat. Thus, two separate lists have to be made by the Block Officer. This requires further co-ordination of the work of the Supervisors by the Block Officer. The finalisation of the list by the Block Officer would also take about ten days if it is made post haste. It is this list which after it has been compiled by the Block Officer it is sent to the District Magistrate under sub-rule (3). Now, by virtue of Rule 9, the territorial area of two or more Kshetra Panchayats is to be specified as a Zone, by the District Magistrate District Magistrate and every zone is to be placed under the Charge of a Zonal Officer. By sub-rule (2) of this rule, the Zonal Officer is to ensure that the lists which have been made by the Enumerators and corrected by the Block Officers and compiled by the Supervisors under Rules 4 and 8, respectively, are "prepared and compiled correctly within such period as may be specified by the District Magistrate on his behalf". There is, at least, some period the District Magistrate will indicate within the zonal Officer is to co-ordinate all the lists for compilation to ensure its correctness. This list will be one of the largest list in the District, as it will be the list for the Zilla Panchayats ultimately. Rule 10 requires the District Magistrate to satisfy himself on the correctness of the lists sent to him by the Supervisors under Rule 8 and, thereafter, on the basis of such lists arrange for yet another list, as the rule says "get a list compiled for the territorial area of the Zilla Panchayat". The compilation of a list for the entire district and make it ready for the territorial area of the Zilla Panchayat, is a list which even if done at a war footing, while ensuring its correctness by examining it with the list of the Enumerators, modification by the Black Officers, further, compilation by the Supervisors, thereafter, the Zonal Officers, depending upon the district, its expanse, and its demographic density may take about thirty days or about a month.

(134) HEREINAFTER, all the lists of the District Magistrates under sub-rule (2) of Rule 10 will go to the Director, Panchayat Raj. Likewise, the Director, Panchayat Raj, has the same obligation to examine the correctness of the lists and further obligation of "after satisfying himself of the correctness of the lists", he would send it for publication in the Gazette. The Directorate, Panchayat Raj, will have the entire lists coming in from the entire State. It will be a survey virtually, though for one class (reserved Backward Class), but, on the basis of the population of the entire, one of the most populous State of the nation. If this list is to be compiled even for the purposes of publication without checking its correctness and abdicating the satisfaction of the correctness part of it, getting this whole State list ready for printing alone will take a month. On the obligation of examination its correctness and satisfying that the lists, as have come from the District Magistrates, are correct, the Director, Panchayat Raj would need one month or thirty days, also. The list now gets ready for publication at the Government Press or wherever it might be. The publication including the exercise composing and printing and sending the lists to be available to the administration at the Districts as also public information for the electorate so that no one complains that this publication is not available, even if done with speed, will yet take another month, if done at break-neck speed, it cannot be said that it can be done within less than fifteen days. The exercise to compile the data under the U. P. Panchayat Raj (Determination and. Publication of the number of persons belonging to the Backward Classes) Rules, 1994 will take about 175, days by a reasonable estimate. The evaluation of the time it would take is given in the rules itself on a survey of the demographic structure of the population of this large State. This is a statistical data where the quality of statistics and its marshalling as one of analysis of breaking the electorate population into its reserved categories, is a serious and tedious exercise which cannot be done, as the representative of the State, the learned Advocate General, U. P. , insisted, between 23 September and 29 September, i. e. , six days.

(135) WHO will examine the correctness of the work of the Government on an election, like this These details can only be verified by an open debate on the floor of the legislature or by the State Election Commissioner.

(136) AND this is not all. Even if the lists in reference to reservations have been prepared by the State Government, the list is subject to scrutiny by the State Election Commission in consultation with the State Government as this is the first job of the Electoral Registration Officer under the U. P. Panchayat Raj (Registration of Electors) Rules, 1994. These rules were put in the State Gazette of 3/09/1994. It is these rules which require the preparation of the first roll of elections. The basis of the electoral list to be taken for the preparation of the electoral rolls is of the last Assembly constituencies, under the Representation of the People Act, 1950. The preparation of the rolls is undertaken by having access to public information to the records of the Registrar of Births and Deaths, the admission register of educational institutions, the claims of illegible persons to be included on the rolls of the territorial constituencies of a Gram Panchayat, the objection to making an entry in the rolls, the period for lodging claims and objections, the varification of the particulars regarding claims and objections, the procedure to be adapted by the Assistant Electoral Registration Officers, the rejection of claims, the provisions of notice and service on the validity of the claims and objections, inquiry into the claims and objections, inclusion of names inadvertently omitted, the deletion of the names of dead electorates or persons, who ceased to be residents in a particular area, the final publication of the rolls, the correction of errors in the rolls, the revision of rolls, and getting ready for the supervision and control for the elections for Panchayats as institutions of self-Government, are subjects which have been given in the Uttar Pradesh (Registration of Electors) Rules, 1994. The exercises to be conducted by these rules and the time to be taken, is prescribed in the rules itself. Upon evaluating the gross time it would take to carry out the assessment and the exercise required by the rules by a modest estimate on the basis of reasonableness, would take the State, Election Commission about three months to complete the exercise, if things are to be done as the rules desire it to be done. The rules were published in the Gazette of 3/09/1994. Without going into the controversy when these rules were, in fact, available and, without going into the question when the public may have come to know these rules as they were placed before the Court only on 23/09/1994, the three months will go into December, 1994.

(137) THE other aspect is that of the elections being scheduled to begin from 29/09/1994 and that the State Government enacting the rules of the game for the conduct of the elections, not the preparation for it. But the basis on which the elections would be carried out, were published in the Gazette of 3/09/1994, these are the Uttar Pradesh Panchayat Raj (Election of Members, Pradhans, and Up-Pradhans) Rules, 1994. These rules were published seven days before announcing schedule for the election. Even the State machinery was not given reasonable time to orient itself to the pattern under which it would work, in effect, this amounts to the State Government denying a reasonable chance even to the State Election Commission to give an orientation course to its Officers and agents for the conduct of the elections and getting it ready for the massive exercise for giving effect to the Constitutional amendments for the conduct of elections in the villages to constitute the Panchayats by a constitutional obligation. These rules saw the light of the day for the first time on 21/09/1994, after the elections had been announced. Assuming this was not the case, even then the rules were published in the State Gazette on 3/09/1994. The programme for election was announced on 10/09/1994. The election process, its administration, the machinery under which the election will be conducted, and the execution of the machinery as a prelude to elections, is a course itself which is to be rehearsed. It is not an exercise to choose a school captain, but one for electing representatives in seventy thousand villages. A computation of the two rules analysed, reveals that verifications required by law and putting the data into print, will, even at a modest estimate, take about 175 days. The State was not getting ready for the election. It was making a joke out of it by playing ball with marbles.

(138) EVEN if every thing goes all right in the regimentation in which the Court has examined the matter and if time was given with due regard to speed, even then any prudent man would find that all this exercise would take time. Was the State Government ready with all the statistics and without any other factor missing to take the electorate into elections forgiving effect to Panchayat Raj in keeping with the mandate of the Constitutional amendments

(139) AFTER first having acknowledged that there were defects in the manner in which the electoral rolls may have been prepared and further, having given a concession at the Bar that the State Government is attempting to rectify the errors, which aspects stand noticed in the counter affidavit of the State, yet, an alternate plea to the effect that the Court cannot examine this matter, as it is beyond its purview, is understood as misplaced. No reasons have been given for raising such an argument, nor for their being fortified by any precedent which may restrain the Court from examining the matter before it. Accepting an error which is not only apparent, but manifest of the manner in which even the administration of Panchayats at the village level were not in conformity with the amendments to the Constitution, likewise the data for the election was yet being processed or the constituencies as chalked out or the modalities for giving representation of the peoples to the Panchayats, was ignoring the purpose for which the amendments had been brought into the Constitution. The submissions, thus, made at the Bar contradicted the mistakes accepted in its counter affidavit on behalf of the State Government.

(140) THE Supreme Court, since the last forty years, has consistently laid down that the preparation and revision of the electoral roll is not part of an election. It is not the election of any candidate which is being debated at the Bar in the large number of petition, but the aspect whether the amendments to the Act are in conformity with the constitution amendments or whether the Act in its attempt to incorporate the amendments has, in fact, run against the grain of the Constitution, particularly Part IX. Whether an electoral roll or the manner in which it is prepared, is vitiated or whether it is to be treated as valid or invalid is a matter which is open to judicial review. In the matter of Indrajit Barua v. Election Commission of India, AIR 1986 SC 103 [LQ/SC/1985/316] the Supreme Court held :

"we are not prepared to take the view that preparation of electoral rolls is also a process of election. We find support for our view from the observations of Chandrachud, C. J. , in Lakshmi Charan Sens case, AIR 1985 SC 1233 [LQ/SC/1985/188] (supra) that "it may be difficult, consistently with that view, to hold that prepration and revision of electoral roll is a part of election within the meaning of Art. 329 (b)". In a suitable case challenge to the electoral roll for not complying with the requirements of the law may be entertained subject to the rule indicated in Ponnuswamis case, AIR 1952 SC 64 [LQ/SC/1952/2] (supra). But the election of a candidate is not open to challenge on the score of the electoral roll being defective. Holding the election to the legislature and holding them according, to law are both matters of paramount importance. "

(141) IN re: N. P. Ponnuswami v. Returning-Officer, Namakkal, AIR 1952 SC 64 [LQ/SC/1952/2] the Supreme Court was of the view that it is only rejection or acceptance of a nomination paper, which act is included in the term "election" which cannot be the subject matter of a challenge under Article 226 for the simple reason that the law does not contemplate alternate adjudication on such matters connected with delections in two forums, one, under the Representation of the People Act, 1951 and the other before a Court under Article 226.

(142) THEN, in the matter of Election Commission of India v. Shivaji, AIR 1988 SC 61 [LQ/SC/1987/750] the Supreme Court held that the word election has, by long usage in connection with the process of selection of proper representation in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of a candidate, which may embarrass the result of the poll, when there is polling, or a particular, candidate being returned unopposed when there is no poll. A dispute regarding an election has, to be settled in accordance with the provisions contained in Part IV of the Representation of the People Act, 1951. This is a dispute which questions the election of a candidate, which action is brought to vitiate an election, at the appropriate stage, in an appropriate manner, before a special Tribunal. But, the present bunch of cases before this Court has nothing to do with an election of any candidate nor any candidature of any candidate has been challenged by these petitions. The complaints of the peoples from the village of Uttar Pradesh is that even the survey, as a prelude to the elections, is non-existent, as even the scheme, of administration of Panchayats has not been implemented in accordance with the Constitution of India. Thus, the suggestion, to the effect, that the Court cannot review the faulty, hurried and shabby legislation brought in by the State Government to amend the Act is without premises and is misconceived. The amendments to the Act, as the Court has recorded in the judgment, are against the spirit of the Constitution and are ultra vires. The rules which affect election may have been published but virtually on the eve of it and were being placed before the High Court as hares jumping out of a magicians hat right at the time of the hearing of the writ petitions. The people need to know, and if the elections are to be conducted according to the rules, the latter must be made available. Their non-availability to the people has been accepted by the State Government. Once the State Government has admitted that there is much to be seen in the manner in which the administration of the Panchayats was attempted to be established, the submission that the Court cannot examine a faulty legislation which is incompatible with the Constitution of India, is an argument which neither holds nor can be accepted. Conclusion

(143) THE Constitution of India has given an inherent, in-born right to its citizen to determine their political aspirations which are, by civic principles upright. The right to determine their village was always there as a concept, but now is one such right conferred. Governments from the State capital cannot interfere with this legal right of the citizen. Simultaneously, the right to self-determine aspects of local government are local to the people. The naming of a village pond, a village street, a village community hall, a village play-ground, or the re-naming of these, is not in the hands of the politics of power-wielding caucuses. If the peoples of a village take upon themselves to re-name a village, this Court has no hesitation in declaring the right conferred on them, is inherent in them under the Constitution of India, and that right even the Head of the State be that the President of India or the Governor of a State, cannot take away nor impose on the people of the villages, when they determine their rights or obligations within the confines of the Constitution. When this grain sets into local government, that will be a true democracy.

(144) IN matters of local government, of which planning is part, on local planning to be undertaken by the local people, for the locality personal to them, but for the benefit of the community, the Supreme Court in re: Bangalore Medical Trust v. B. S. Muddappa, AIR 1991 SC 1902 [LQ/SC/1991/322] , has reflected on the decentralisation to snake, an authority subservient to the people at the ground level where actions take place. Simply put, the Supreme Court has had no hesitation in saying that where interests of a locality are to be looked after, a decision cannot be taken by a Chief Minister in the capital. The Supreme Court had before it a matter from the State of Karnataka. The issue was whether an area in a public park could be sliced off and given to an individual for the purpose of making a hospital or a nursing home. Apparently, the decision was taken by the State Government and with much initiative, guided by the Chief Minister of that State, justifying a nursing home or a hospital in a public park as good for the community. The Supreme Court took the theme that the plans are for the people and the people who reside at the level where the plans would be absorbed. The authorities are obliged to execute the plans for the people and are obliged not to ignore them. The local authority was cast with a duty of examining and executing local plans with local objectivity. Rejecting the defence of the State Government that it or its Chief Minister could override the will of the people and criticising the authority which was supposed to look after the betterment of the aspirations and desire of the people, as an administration in public trust, the action of the State Government as also the Chief Minister of that State was declared to be ultra vires. In the present case, the issue is not so much either of a park, or a hospital in it, but the recognition of a principle by the Supreme Court on the functioning of local government for the people local to it. Decisions are to be taken by the people, for the people and plans executed as coming from the people, working within the framework of law. The Supreme Court in the Bangalore Medical Trust (supra) made several notes taking observations which are relevant for the issue in hand. The Supreme Court wrote. "the rise in exercise of power by the executive and comparative decline in proper and effective administrative guidance is forcing citizens to espouse challenges with public interest flavour. . . . . . . . . . . Merits, too, raise issues of far-reaching importance. One of them being the efficacy of exercise of individualised discretion where law or the rules contemplate participatory objective decision or conclusion. Another is the requirement of substantive fairness in dealings by Government or local bodies or public institutions with people of any strata of society uniformally or equally. . . . . . . . . . . Did the authorities care to ascertain the provisions of law or rules under which they could act Was any precaution taken by the Chief, Executive of the State to adhere to legislative requirement of altering any scheme. Not in the least. The direction of the Chief Minister, the apex public functionary of the State, was in breach of public trust, more like a person dealing with his private property than discharging his obligation as head of the State administration in accordance with law and rules. The Government record depicted even more distressing picture. The role of the administration was highly disappointing. In their notings even a show of awareness of law and fact was missing. This culture of public functionary adorning highest office in the State of being law to himself and the administration acting on dictate, for, whatever reason disturbs the balance of rule of law. . . . . . . . . . . Speedy or quick actions in public institutions call for appreciation but our democratic system sans exercise of individualised discretion in public matters requiring participatory decisions by rules and regulations. No one whosoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rule and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra vires and bad in law. When the law requires an authority to act or decide, if it appears to it necessary or if he is of opinion that a particular act should be done then it is implicit that it should be done objectively, fairly and reasonably. . . . . . . . . . . In any case the power does not vest in the State Government or the Chief Minister of the State. The exercise of power is further hedged by use of the expression, if it appears to the Authority. . . . . . . . . . . The purpose of the Authority taking such a decision is their knowledge of local conditions and what was better for them. That is why participatory exercise is contemplated. . . . . . . . . . . What is not permitted by the Act to be done by the Authority cannot be assumed to be done by the State Government to render it legal. And illegality cannot be cured only because it was undertaken by the Government. The section authorises the Government to issue directions to carry out purposes of the Act. That is the legislative mandate should be carried out. And not that the provisions of law can be disregarded and ignored because what was done was being done by State Government and not the authority. An illegality or any action contrary to law does not become in accordance with law because it is done at the behest of the Chief Executive of the State. No one is above law. In a democracy what prevails is law and rule and not the height of the person exercising the power. For these reasons the entire proceedings before the State Government suffered from absence of jurisdiction. Even the exercise of power was vitiated and ultra vires. Therefore the orders of the Government to convert the site reserved for public park to civic amenity and to allot it for private nursing home to Bangalore Medical Trust and the resolution of the Bangalore Development Authority in compliance of it were null, void and without jurisdiction". 23

(145) THE approach to self-government as in 1947 and 1994 cannot be the same. The Raj syndrome ought to make itself scarce. The generation of those years is fast disappearing. The people have to plan for themselves, and the days of the government with politicians making plans and the people eating the humble pie of half-baked plans, are over. Plans are for the consumption of the people and not assumption by the power brokers. Mahatma Gandhi reflected on this, when he said :

"real Swaraj will come not by the acquisition of authority by a few but by the acquisition of the capacity by all to resist authority when it is abused. In other words, Swaraj is to be obtained by educating the masses to a sense of their capacity to regulate and control authority".

24 24. (Mahatma Gandhi, Young India, 29/01/1925 from Gandhis Reflection on Democracy: National Council on Asian Affairs, U. S. A. , 15/08/1947)"mere withdrawal of the English is not independence. It means the consciousness in the average villager that he is the maker of his own destiny, he is his own legislator through his chosen representative".

25 25. (Ibid Young India, 13/02/1930) But, When the Mahatma said:"i am not interested in freeing India merely from the English yoke. I am bent upon freeing India from any yoke whatsoever".

It is, implied that he sincerely meant that for the concept english, politician could also be substituted.

(146) AFTER the Constitution of India took in amendments to mandate self government in matters - civil and rural, every legislation framed on the subject of local self-government before the Republic needed scrutiny and perhaps redrafting failing revision and amendments. One cannot add a new heart to an old brain; it will think the same. The amendments to the Constitution changed many concepts on what is a village and a Gram Sabha, the corelation between the two; the village in its administration and its identity; the Gram Sabha as a body; the Panchayat; its area and its division into territories for raking in representation from them. Amending the Act, a 1947 legislation, did not bring in any ingenuity but by cutting a little from one act and a little from another and compiling to make nothing which was original but a hapless haphazard mediocrity. The U. P. Panchayat Raj Act, 1947, as now, amended is an exercise in mediocrity which may have updated the aforesaid. Act of 1947, but has contradicted the ethos of self-government in villages as desired by the Constitution. These contradictions are listed in this judgment,

(147) WHERE is the occasion for the State to duplicate, what the Constitution has already provided. The State Government must divert its attention to those aspects by which the Constitution has permitted it to provide elaboration. Once the Constitution has given definition of certain aspects, there cannot be a variation beyond the Constitution. Once the Constitution has given preciseness to certain concepts in the matter of local-government, there cannot be a variation in a legislation to dilute the meaning of the Constitution. As a very simple exercise, it should have been understood that, if for any concept or term, the Constitution had given a definition, then, was it necessary to duplicate the exercise in trying to explain the same concept in a State enactment This is the first falacy which the State enactment suffers from. And, in trying to explain further beyond the Constitution, contradictions have arisen. For instance, the same terms have either been ignored or have seen repeated explanations, which, in doing so, the State enactment has eclipsed the Constitution by losing the true intent and the original meaning of the concepts. Terms like, "district", "gram Sabha", "intermediate level", "panchayat", "panchayat area", "population", "village", etc. already stand defined in the Constitution (Article 243). There can be no other meaning except what the Constitution says. A State enactment can neither dilute the spirit of the, Constitution nor add any thing further which may negate the concept of local government, the continuity of which is guaranteed by the Constitution. The State enactment should have been simply redrafted to accept whatever the Constitution has already mandated. Only where the Constitution has permitted, legislation should have been undertaken keeping the guidelines as given in the Constitution itself.

(148) TRULY, after the Constitution had been amended and Chapters IX and IXA on Panchayats had been inserted with an inherent, inborn and a statutory obligation to local self-government both in rural and urban India, the Constitution guides us to a self-generating government as an answer to local government, which is not different than what the economists refer to a self-generating economy. The State Government apparently lost sight of the track that it could not use the same theme on the original U. P. Panchayat Raj Act, 1947, as had been enacted. The Court has already indicated that an enactment on local government enacted during the year when India had a dominion status may be carrying a dated perspective. Peoples participation in administration and economic planning in the area of their locale, was not a concept which had been put into any legislation since the nation became a republic, at least it had not been made a constitutional obligation. The Amendments to the Constitution, in context, permit the village through the villagers who are known as the Gram Sabha (comprising of persons registered in the electoral rolls relating to a village level) to plan, chalk out and implement their own schemes. The enactment, the U. P. Panchayat 1947, after all came only two years after the Second World War. It could not be expected, that in the shadow of the Raj total self-government at the local level will be doled out to the people. In 1947, at the time when the U. P. Panchayat Raj Act was being enacted, the Governor General had taken over from the Viceroy. Total autonomy to the village in planning and in implementing their economic plans had yet to visit the villages. It is surprising that it took 46 years, for those who monitor the destinies of the nation, in injecting Mahatma Gandhis vision as a constitutional obligation that true democracy will only be had by the nation when rural India participates in it. The Court is surprised that the U. P. Panchayat Raj Act, 1947 for almost half a century did not carry amendments on its own and the exercise was undertaken only, after the Constitution of India was amended to insert in politics a never to be lost, civic right to local self-government. Once the Constitution carried amendments to it on local government, whether at the urban or the village level, it became an obligation. The meaning was very clear that the entire Act had to be redrafted, overhauled and rewritten with an absolutely fresh approach to local- government at the gross-root level. Putting strips of correction slips in this Act of 1947 was only putting grafts which the body would not and could not take. In this exercise, any grafting which has been done in the enactment, has not taken with the body. The grafts are being rejected by the Constitution. The Act with the rejection of the grafts on the basis of the recently incorporated State amendments, cannot survive in the face of the amendments which had been brought to the Constitution. The amendments which have been incorporated into the State enactment are not compatible with the Constitution of India, as it stands today. The obligation of the High Court, upon examining these large number of writ petitions, is not to legislate for the State, as this is not the intention of the High Court. But, upon certificate action being sought by citizens, through a writ of certiorari and by judicial review the Court can only point out the repugnancy between the State amendments and the Constitution, of India. But, clearly the entire Act needs to be redrafted as an exercise in excellence, not as an exercise in mediocrity of a novice editor who contributes nothing original with a scissor and paste affair, but consistently, violates the copy right.

(149) THE Court hereby declares that: The definitions of the village in S. 2 (t), is ultra vires the definition of it in Art. 243 (g) of the Constitution. The definition of gram Sabha in S. 2 (g), including S. 3, is ultra vires the definition of it in Art. 243 (b) of the Constitution of India. The concept of panchayat, with the meaning of village and. gram Sabha not understood, is against the constitution of it as given in Art. 243 (d) read with Art. 243-B of the Constitution of India. The meaning of panchayat area, as in S. 2 (11), read with S. 11-F, does not dovetail into nor is compatible with the concept of it under Art. 243 (e) read with Art. 243-C of the Constitution of India as it misunderstands the basic concept of a village and a Gram Sabha, disrespects the aspiration and ethos of the people living in them, and violates their identity and recognition guaranteed under the Constitution. The contradiction in the U. P. Panchayat Raj Act, 1947, in the face of the provisions incorporated as Part IX to the Constitution of India, under the Chapter "panchayats", render the State enactment as repugnant to the Constitution of India. To the extent of the repugnancy, such provisions are held as ultra vires to the Constitution of India. The fuller explanation of the discrepancy between the Act and the Constitution of India are given in the body of the judgment.

(150) THE existing Panchayats shall continue to keep their term, unless and until sooner dissolved by a resolution passed to that effect by the Legislative Assembly of the State of Uttar Pradesh by each House of the Legislature.

(151) ALL the writ petitions before the Court which are strictly relating to the U. P. Panchayat Raj Act. 1947, complaining of aberrations between the Act, aforesaid, and the Constitution of India, and are the subject matter, of this judgment in its context, succeed. Some petitioners have attempted to challenge, in what they say, that the provisions of the Constitution of India by which Part IX, i. e. , the subject of Panchayats, had been added, is ultra vires. This is easier said than done that the provisions of the Constitution are ultra vires. But to be fair, this Court has not heard arguments on this aspect and, thus, not dealt with such writ petitions which attempt to challenge the amendment to the Constitution of India, exclusively, in reference to the context. But, should any writ petition have mixed-up the challenge of acts done in pursuance of the Act as also allege a challenge to the constitutional provisions relating to Panchayats; these petitions will be considered as decided on what the judgment is.

(152) APART from the observations in the paragraphs, this writ petition alongwith others are allowed with costs, which stand at Rs. 1,000-00, to each petitioner, which costs shall be credited to the accounts of the Gram Panchayat concerned and, if the Gram Panchayat concerned is being re-aligned as a consequence of this judgment, then, the concerned realigned Gram Panchayat. Petitions allowed.