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Case Number

Civil Writ No. 142 of 1955

Advocates

Amrit Raj, for Petitioner;
L.N Chhangani, for Government Advocate

Judges

Kailash Wanchoo

Acts

Marwar Village Panchayat Act of 1945 (hereinafter called that Marwar Act).
Rajasthan Panchayat Act, No. XXI of 1953, (hereinafter called the Act)

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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

This is an application under Article 226 of the Constitution by Jugraj. The factual matrix as stated in the opinion is as follows:

Village Osia originally had a Panchayat constituted under the Marwar Village Panchayat Act, 1945 (the "Marwar Act").
The Rajasthan Panchayat Act, No. XXI of 1953 (the "Act") came into force on 1 January 1954. Section 93(2) of the Act operated to continue certain existing Panchayats.
Subsequently, a State Government notification dated 13 November 1954 established a Panchayat consisting of two villages, Osia and Dhunaria, and elections were held.
The applicant's contention was that, because Panchayats established under the Marwar Act were deemed by s.93(2) to have been established under the Act from 1 January 1954, the State Government could not, by a notification of 13 November 1954, establish another Panchayat comprising Osia and Dhunaria without following the procedure in s.86 of the Act; no action under s.86 was taken, and therefore the November 1954 notification was ultra vires.
The opinion notes a prior decision (Bhomaram v. State of Raj) dated 6 September 1955 in which the re-constitution of the Bar Panchayat by adding villages without recourse to s.86 was held to be against the Act.
After that decision, the Raj Pramukh promulgated the Rajasthan Panchayat (Amendment) Ordinance (No. 15) of 1955 (the "Ordinance"), which came into force at the end of October 1955 and added two sub-sections (3) and (4) to s.93 of the Act. These sub-sections are set out in the opinion and provide (a) specific power to include or exclude areas when re-constituting Panchayats under s.93(2), excluding the applicability of s.86 to such inclusions or exclusions, and (b) deeming provisions validating prior notifications, orders and elections made after commencement of the Act as having been made under the newly inserted sub-sections.
The principal procedural outcome is that the Court was required to decide whether, in view of the Ordinance, the earlier decision in Bhomaram's case remained good law and whether the Ordinance itself was constitutionally valid; the Court ultimately dismissed the application.

Legal Issues Presented

Whether the Rajasthan Panchayat (Amendment) Ordinance (No. 15) of 1955 (which added ss.93(3)–(4)) is valid and, if valid, whether it validates the State Government's notifications (including the 13 November 1954 notification) re-constituting Panchayats without following s.86.
Whether the Ordinance (and specifically the new ss.93(3)–(4)) is invalid under Article 14 of the Constitution on the ground of discrimination between (a) Panchayats existing and continued under s.93(2) and (b) Panchayats established under s.3 of the Act (i.e., whether excluding s.86 for the former class amounts to prohibited discrimination).
Whether s.93(2) (as interpreted or applied) gives unfettered or unregulated power to the State Government to reconstitute or not reconstitute certain existing Panchayats, thereby offending Article 14 (challenge supported by reliance on Thakur Madhosingh and Rao Manohar Singh).
Whether the Ordinance is invalid because it was promulgated by the Raj Pramukh without obtaining the assent of the President (whereas the Act itself required Presidential assent).

Arguments of the Parties

Applicant's Arguments

The applicant contended that, under s.93(2) of the Act, Panchayats established under the Marwar Act were deemed to have been established under the Act from 1 January 1954; therefore the State Government could not create, by notification dated 13 November 1954, a new Panchayat comprising Osia and Dhunaria without resorting to s.86 of the Act.
The applicant argued that the Ordinance (adding ss.93(3)–(4)) was invalid under Article 14 because it discriminated between existing Panchayats continued under s.93(2) (for which s.86 was excluded by the Ordinance) and Panchayats to be established under s.3 (for which s.86 would apply).
The applicant further argued under Article 14 that s.93(2) conferred unfettered discretion on the State Government to reconstitute or not reconstitute existing Panchayats (particularly those elected on adult franchise), and that this unfettered discretion was susceptible to abuse (relying on Thakur Madhosingh and Rao Manohar Singh).
Finally, the applicant urged that the Ordinance was invalid because it had not received the assent of the President, whereas the original Act had requisite Presidential assent.

The opinion does not contain a detailed separate listing of the State's or other parties' counter-arguments in the same structured form; the Court's responses to the applicant's contentions are recorded in its reasoning.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhomaram v. State of Raj (decision dated 6 September 1955)	Held that the State Government could not add areas to existing Panchayats without recourse to s.86 of the Act; re-constitution of the Bar Panchayat by addition of certain villages was against the Act.	The Court observed that the Ordinance's ss.93(3)–(4) would, if valid, validate the notifications and elections made in October/November 1954 and would, in effect, supersede the judgment in Bhomaram's case.
Thakur Madhosingh v. State of Rajasthan	Cited for the proposition that absence of any guiding principle controlling executive discretion can render a provision an unconstitutional grant of unfettered power (the cited case concerned application of an Act affecting agricultural rent and landlords' rights).	The Court distinguished that case on facts and principle, finding it not analogous: the present provision contained a discernible principle of classification and did not confer power in the same unguided manner liable to abuse.
Rao Manohar Singh v. The State of Rajasthan	Cited for the proposition that provisions conferring unregulated and unbridled power (e.g., to exempt persons from an Act without criteria) can be struck down as liable to abuse and violative of Article 14.	The Court distinguished this case as well, holding that the power under the present legislation was not of the same unregulated character and was not shown to be liable to abuse in the context of establishing or reconstituting Panchayats.

Court's Reasoning and Analysis

The Court's analysis proceeds in a stepwise manner, confined to the material in the opinion:

Content and Effect of the Ordinance:
The Ordinance inserted ss.93(3) and (4) into the Act and provided that these sub-sections were to be deemed always to have been part of s.93 from the commencement of the Act (1 January 1954). Section 93(3) authorised the State Government, when ordering re-constitution under s.93(2), to include or exclude any area from a Panchayat circle and to issue directions regarding the number of Panches and other reconstitution matters; it expressly stated that s.86 shall not apply (and shall be deemed never to have applied) to such inclusion or exclusion. Section 93(4) contains deeming provisions validating Panchayats notified or reconstituted after commencement of the Act and validating orders and elections made in pursuance of such orders as being under the new sub-s.93(3).
Immediate Legal Consequence If Ordinance Valid:
If s.93(3) is valid, it must be treated as having been in force from 1 January 1954; consequently the re-constitution by the 13 November 1954 notification must be deemed to have been made under that sub-section, and s.93(4) would validate the notifications, orders and elections made in October/November 1954, effectively superseding the earlier judicial decision in Bhomaram's case. Thus the applicant's challenge would fail unless the Ordinance itself were ultra vires.
Article 14 — Classification and Non-Discrimination:
The applicant argued that the Ordinance discriminated between (a) existing Panchayats continued under s.93(2) (for which s.86 was excluded by s.93(3)) and (b) Panchayats to be established in future under s.3 (for which s.86 would apply). The Court accepted that difference in treatment but identified a rational principle of classification: continuity and administrative necessity. Existing Panchayats continued under s.93(2) required a mechanism for reconstitution to maintain continuity because they had been constituted under various prior Acts with differing provisions. The legislature therefore allowed the State Government power to re-constitute those existing Panchayats; the form of that re-constitution was clarified by the newly inserted s.93(3). The Court concluded that this classification was intelligible and that, after reconstitution, the provisions of s.86 would apply to the reconstituted Panchayats in future; accordingly s.93(3) was not hit by Article 14 on the ground of discrimination.
Article 14 — Allegation of Unfettered Discretion:
The applicant further contended that s.93(2) conferred unfettered discretion on the State Government to reconstitute (or not) certain Panchayats, especially those elected on adult franchise, and that this could result in arbitrary discrimination. The Court examined the authorities relied upon (Thakur Madhosingh and Rao Manohar Singh) and concluded that those cases were distinguishable on their facts and principles: they dealt with provisions that gave unguided power affecting private rights (rent/Excise exemptions) and lacked any guiding principle, making abuse likely. By contrast, the establishment or reconstitution of Panchayats involves administrative considerations difficult to specify exhaustively in legislation; some discretion to the executive is therefore necessary, and nothing in the present provision demonstrated that such discretion was inherently liable to abuse. The Court further noted that s.3 of the Act already confers similar discretion on the executive in establishing Panchayats. On this basis the Court rejected the contention that the discretion under s.93(2) (and the Ordinance's additions) offended Article 14 as being unregulated or unbridled.
Presidential Assent:
The applicant argued that the Act required the President's assent and that, because the Ordinance was promulgated by the Raj Pramukh without Presidential assent, the Ordinance was invalid. The Court reasoned that the Act had required Presidential assent because some of its provisions related to criminal and civil powers of Panchayats and therefore conflicted with procedural laws in the concurrent list; in such circumstances the President's assent was necessary to the Act as a whole. The Court observed, however, that the specific provisions amended by the Ordinance did not deal with matters covered by central legislation under the concurrent list; therefore Presidential assent was not necessary for the Ordinance, and the challenge failed.
Conclusion of Analysis:
On the cumulative effect of the foregoing, the Court held that the Ordinance could not be struck down on the grounds advanced; the Ordinance validly added ss.93(3)–(4), thereby validating the Government's acts and notifications in October/November 1954.

Holding and Implications

Holding: The Court dismissed the application; it held that the Rajasthan Panchayat (Amendment) Ordinance (No. 15) of 1955 (adding ss.93(3)–(4) to the Act) is valid and cannot be attacked on the grounds raised in the application. The Court expressly held that the Ordinance validates the acts of the Government in October/November 1954 by the insertion of ss.93(3) and (4).

Implications:

The direct effect is that the applicant's challenge under Article 226 fails and the re-constitution and related elections notified in October/November 1954 are validated by the deeming provisions of s.93(4).
The Court concluded that the Ordinance removes the consequence (in this matter) of the earlier decision in Bhomaram v. State of Raj, insofar as the Ordinance's deeming provisions validate the notifications and elections that had been challenged; thus the earlier decision is superseded by the legislative amendment effected by the Ordinance as explained in the opinion.
The Court did not find that the Ordinance created an unregulated or unconstitutional grant of power under Article 14; it accepted a legislative classification between existing Panchayats continued under s.93(2) and Panchayats to be constituted under s.3, and it upheld the need for executive discretion in matters of establishing and reconstituting Panchayats.
The Court found no requirement for Presidential assent to the Ordinance on the facts and legal distinctions given in the opinion, and consequently the lack of such assent did not invalidate the Ordinance.

Disposition: DISMISSED — the application under Article 226 was dismissed by the Court.

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Jugraj v. Rajasthan State

Wanchoo, C.J:— This is an application under Art. 226 of the Constitution by Jugraj, and arises in the following circumstances:

2. The case relates to village Osia in which a Panchayat had been established under the Marwar Village Panchayat Act of 1945 (hereinafter called that Marwar Act). From the 1st of January, 1954. The Rajasthan Panchayat Act, No. XXI of 1953, (hereinafter called the Act) came into force. A notification was issued under the Act for the establishment of a Panchayat consisting of two village namely Osia and Dhunaria, Thereafter, elections were held to this Panchayat of the two villages, and certain persons were elected. The applicant contends that under sec. 93(2) of the Act the Panchayats established under the Marwar Act were deemed to have been established under the Act from the date of its commencement, i.e 1st of January, 1954. Therefore, it was not open to the State Government by means of a notification, dated 13th November, 1954, to establish another Panchayat consisting of Osia and Dhunaria, and that if the State Government wanted to add any area to the Osia Panchayat it should have taken action under sec. 86 of the Act. No action was, however, taken under sec. 86, and as the notification of the 13th November, 1054, establishing one Panchayat for two villages namely Osia and Dhonaria really amounted to adding further area to the existing Panchayat of Osia, the establishment of a Panchayat for Osia and Dhunara was ultra vires of the powers of the State Government. A similar application relating to the Panchayat of Bar came to this Court, and was decided by a Bench, of which one of us was a party on the 6th of September 1955; vide Bhomaram v. State of Raj.(1) It was held in that case that it was not open to the State Government to add areas to existing Panchayats without recourse to the provisions of sec. 86 of the Act, and as that was not done in the case of the Panchayat at Bar, the re-constitution of the Bar Panchayat by addition of certain other villages to it was held to be against the provisions of the Act.

3. Since then an Ordinance has been issued by His Highness the Raj Pramukh, which is titled as the Rajasthan Panchayat (Amendment Ordinance (No. 15) of 1955 (hereinafter called the Ordinance). It came into force at the end of October, 1955. The question, therefore arises whether in view of this Ordinance the decision in Bhomaram's case remains good law or not.

4. The Ordinance consists of four sections, but we are concerned with sec. 3 by which two sub-sections have been added to sec. 93 of the Act. These additional sub-sections are follows—

“(3) In making direction for the re-constitution of a Panchayat under sub-sec. (2) the State Government may order any area to be included in or excluded from the Panchayat circle of such Panchayat and may issue further directions as to the number of Panches of the Panchayat for the altered area and as to other matters relating to such reconstitution and re-election of Panches thereto; and nothing in sec. 86 shall apply or be deemed ever to have; applied to such inclusion or exclusion.

“(4) Notwithstanding any defect or lack of form, procedure, jurisdiction or power and notwithstanding any thing contained in any judgment, decree or order—

(i) all Panchayats of the category specified in sub-sec.(2), which have been notified after the commencement of this Act to have been established under sec. 3 or to have been reconstituted under sub-sec. (2) of this section shall be deemed to have been reconstituted, as respects their Panchayat circle, under sub-sec. (2) read with sub-sec. (3), of this section, and

(ii) all orders made under sec. 4 as to the number of Panches of such Panchayat or as to other matters relating to the re-constitution of such Panchayats and the re-election of Panches thereto as well as all elections held in pursuance of such orders shall be deemed to have been made, or held, as the case may be, under sub-sec. (3) of this section.”

It has been provided in sec. 3 of the Ordinance that the new sub-sections shall be deemed always to have been inserted in the Act so that the position now is that sec. 93 of the Act must be held to consist of four sub-sections from the very beginning including the two new sub-sections added by the Ordinance. By the new sub-sec. (3), the State Government has been given the power, when ordering re-constitution of a Panchayat under sub-sec. (2) of sec. 93, to include or exclude any area from the Panchayat circle of such existing Panchayat, and also power to give directions as to the number of Panches of the Panchayat for the altered area and as to other matters relating to such re-constitution and re-election of panches thereto. It is further provided that nothing in sec. 86 shall apply or be deemed ever to have applied to such inclusion or exclusion.

5. It is obvious that if sub-sec. (3) is valid, the application must fail for this sub-section must be deemed to have come into force from the 1st of January, 1954, and the re-constitution under the notification of the 13th of November, 1954, must be deemed to have been made under this sub-section. Further, it is specifically provided in the new sub-sec. (4) that all Panchayats of the category specified in sub-sec. (2), which have been notified after the commencement of the Act to have been established under sec. 3 or to have been reconstituted under sub-sec. (2) of this sub-section shall be deemed to have been reconstituted, as respects this Panchayat circle, under sub-sec. (2) read with sub-sec.(3) of this section, and all orders made under sec. 4 as to the number of Panches of such Panchayat or as to other matters relating to the re-constitution of such Panchayat and the re-election of Panches thereto as well as all elections held in pursuance of such orders shall be deemed to have been made, or held as the case may be, under sub-sec. (3) of this section. These two sub-sections therefore validate what was done by various notifications of Government in October or November, 1954, and in fact supersede the judgment of this Court, dated 6th of September, 1955. Therefore, unless the Ordinance itself is ultra vires this application must fail.

6. It has however been urged that the Ordinance is invalid as it is hit by Art. 14 of the Constitution. The argument is that discrimination is made between new Panchayats established under sec. 3 of the Act and the existing Panchayats continued under sec. 93(2) of the Act. The discrimination is that in case of Panchayats established under sec. 3 if any change in the area of such Panchayats is to be made the procedure provided under sec. 86 has to be followed, while in the case of Panchayats continued under sec. 93(2) such procedure has been definitely excluded by sub-sec.(3) to sec. 93. That is undoubtedly so, but there is clearly a principle of classification discernible in this case between Panchayats which were existing on the date the Act came into force and Panchayats which were to be established after the Act came into force. In order to maintain continuity it was necessary that the existing Panchayats in those areas of Rajasthan where they were in existence should be continued, and sec. 93(2) provided for continuance of such Panchayats for the time being. But as these Panchayats were established under various Acts with different provisions in various parts of Rajasthan, power was given to the State Government to re-constitute such Panchayats. Some of them, according to the legislature's command, were to be necessarily reconstituted namely those which were not elected on adult franchise. Others, which were elected on adult franchise, were to be reconstituted at the discretion of the State Government. But it was obviously necessary to continue the existing Panchayats till this matter of reconstitution could be gone into as it was bound to take time. The old Panchayats thus continued from the 1st of January, 1954, under the Act, and were gradually reconstituted under sec. 93(2). What is the from of that re-constitution has now been made clear by new sub-sec.(3) of sec. 93. We, therefore, see no ground for holding that merely because the procedure of sec. 86 is not to apply to the existing Panchayats, there was any discrimination at between the existing Panchayats and the Panchayats to come into existence in future, for after the reconstitution of the existing Panchayats under sec. 93(2), the provisions of sec. 86 would apply to such reconstituted Panchayats also in future. It cannot be said therefore that this provision contained in sub-sec. (3) is hit by Art. 14.

7. Another argument based on the same Article is that sub-sec. (2) of sec. 93 gives unfettered powers to the State Government to reconstitute or not to reconstitute such existing Panchayats as were elected on adult franchise, and that this will lead to discrimination, and therefore the provision is hit by Art. 14. In this connection reliance was placed on Thakur Madhosingh v. State Of Rajasthan (2), and Rao Manohar Singh v. The State of Rajasthan(3). It is enough to say that there is no force in this contention either. The two cases relied upon by learned counsel and the facts on which those two case are based are, in our opinion, clearly distinguishable. In Thakur Madhosingh's case(2) the question was about the application of a certain Act to certain areas in Rajasthan, and it was contended that there was no guiding principle anywhere in the Act controlling the discretion of the state Government as to the application of the Act to particular areas in Rajasthan. The Act dealt with agricultural rent and this infringed on the right of landlords to collect rent from their tenants. It was in those circumstances held that the absence of a guiding principle gave unfettered power to the State Government, which was liable to be abused. In Rao Manohar Singh's case(2), the provision which was struck down was about exemption of certain persons from the provisions of the Excise Act. It was held that it gave unregulated and unbridled power to the Government by which it would be open to it to exempt any person whatsoever from the operation of the Act as contra-distinguished from any other person without any rhyme or reason. The provision was thus liable to abuse, and might be used as a weapon of favouritism by the State Government.

8. The present provision is in our opinion not subject to the same defects and is not liable to abuse. Nor does it infringe the right of any private individual. Establishment of a Panchayat for a certain area depends upon a number of considerations which it is very difficult to lay down in an Act of the legislature Discretion has therefore to be left to the executive in matters of this kind, and where such discretion is not per se liable to abuse, there is no reason why it should be said that the discretion left is a kind of unregulated and unbridled power conferred on the executive. We may in this connection point out that in sec. 3 also the same discretion is left with the executive. That section gives power to the State Government in its discretion to establish a Panchayat for a village or group of villages not included with in the limits of a municipality the time and place of establishment of Pan-chayats is thus left to the discretion of the State Government, and it cannot be really said that such discretion gives unregulated and unbridled power to the State Government which is liable to abuse. We are, therefore, of opinion that in the circumstances of the present legislation it cannot be said that the discretion that has been given to the State Government either by sec. 3 or by sec. 93(2) is liable to abuse, and lead to discrimination, and is therefore hit by Art. 14 of the Constitution.

9. Lastly it was urged that the Act was passed with the assent of the President, but the Ordinance has been passed by the Raj-pramukh and the assent of the President has not been obtained in its case, and therefore the Ordinance is invalid. We are of opinion that there is no force in this contention either. The Act required the assent of the President, for some of its provisions dealing with the criminal and civil powers of the Panchayat were in conflict with the Civil and Criminal Procedural laws which are mentioned in the concurrent list, and which were already in existence. It was, therefore, necessary in view of those provisions under the Act to obtain the assent of the President. There is no point in obtaining the assent of the President to certain sections of the Act. In such cases, what is done is that the assent of the President is obtained to the entire Act. But the provisions which have been amended by the Ordinance have nothing to do with any existing legislation of the Central Legislature covered by the concurrent list. It was, therefore, not necessary to obtain the assent of the President to this modification.

10. We are, therefore, of opinion that the Ordinance cannot be attacked on these grounds. It clearly validates the acts of the Government by new sub-secs. (3) and (4) added to sec. 93 of the Act.

11. In this view of the matter, the application fails and is hereby dismissed.

Jugraj v. Rajasthan State

Structured Summary of the Court's Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jugraj v. Rajasthan State

Comments