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PETITIONER: STATE OF U.P. & ORS.ETC.

       Vs.

RESPONDENT: PRADHAN SANGH KSHETTRA SAMITI & ORS. ETC.

DATE OF JUDGMENT24/03/1995

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. AGRAWAL, S.C. (J)

CITATION:  1995 AIR 1512            1995 SCC  Supl.  (2) 305  JT 1995 (3)   252        1995 SCALE  (2)453

ACT:

HEADNOTE:

JUDGMENT: SAWANT, J.: 1.   Special leave granted. 2.The Constitution [Seventy-Third Amendment] Act, 1992  came into force on 24th April, 1993 to give effect to one of  the Directive  Principles of the State Policy, viz., Article  40 of  the  Constitution of India which directs  the  State  to organise village panchayats as units of self-government. 3.   On  coming  into  force  of  the  said   Constitutional Amendment, the States were 257 required  by  the Centre to take steps to  organise  village panchayats  on  the  lines  o the  provisions  of  the  said Constitutional  Amendment  by  making law  or  amending  the existing law suitably.  The Uttar Pradesh State  Legislature amended its Panchayat Raj Act, 1947 [hereinafter referred to as the ’Act’] by enacting the U.P. Panchayat Raj [Amendment] Act, 1994 which came into force on 22nd April, 1994.  As per the  provisions of the Act, several Government  instructions and notifications were issued and rules were framed  between 22nd  April, 1994 and 31st August, 1994 with a view to  hold elections to the panchayats.  In particular the  declaration of  the  gram  panchayat areas under Section  11-F  and  the establishment  of the gram sabhas under Section 3 were  made between  2nd  and 5th August, 1994.  The term  of  the  gram panchayats constituted under the unamended provisions of the Act  was  to  expire  on 23rd  April,  1993.   The  Governor extended  their  term  till  23rd April  1995  or  till  new panchayats  were  constituted, whichever was  earlier.   The elections  to the new panchayats were then notified on  31st August,  1994.   In  pursuance  of  this  notification   the election process was to commence on 29th September, 1994. 4.The   respondents  approached  the  High  Court  by   writ petitions  between  1st  and 9th September,  1994  making  a grievance that the Government orders were being violated  in the  process  of  re-organisation and  delimitation  of  the

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constituencies.   A few of the  respondent-writ  petitioners also challenged the said Constitutional Amendment as well as the  vires  of  the  Act.  The  High  Court  heard  all  the petitions  together.   The State Government,  by  filing  an affidavit as well as through publications in the press  from 9th September to 19th September, 1994, offered a fresh time- schedule of the elections and also to remove the  grievances after  considering the representations.  On 24th  September, 1994, the State Government cancelled the notification  dated 31st August, 1994.  On 26th September, 1994, the High  Court reserved  its judgment.  In the meantime,  under  compulsion and pressure from the Centre including a threat to stop  the release  of  funds  unless  the  process  of  election   was completed  by 31st December, 1994, conveyed in the  Centre’s communication   dated   12th  November,  1994,   the   State Government  renotified  the  dates  of  elections  on   26th November, 1994 in pursuance whereof the process of  election was to commence on 3rd December, 1994. 5.   The  High Court by its impugned judgment  delivered  on 2nd  December, 1994 has held, among other things,  that  the definitions  of  ’village’ under Section 2  [t],  of  ’Grain Sabha’  under  Section 2 [g] and of ’Panchayat  Area’  under Section 2 [11] read with Section 11-F of the Act were  ultra vires the respective definitions given in Articles 243  [g], 243  [b],  and  243  [e] read  with  Article  243-C  of  the Constitution.  The High Court has further held: [i] that the village has to be a habitat according to the anthropological concept,  [ii]  that  the village for the  purposes  of  the Panchayat  can  be  specified only in  accordance  with  the wishes of the inhabitants of the village as conveyed to  the Governor who is obliged to notify it without involvement  of the  State  Government, [iii] that the Governor has  to  act independently  of  the  State Government in  the  matter  of specification of the "village" and [iv] further the  village will  have  to  be  fixed  according  to  the   aspirations, chauvinism and the wishes of the villagers.  As regards the 258 Grain Sabha, the Court has held that although the definition of Gram Sabha refers to a body of persons registered in  the electoral  rolls,  the  reference  to  "establishment  under Section   3"  and  the  provision  for   establishment   and notification of Gram Sabha in Section 3, are ultra vires the Constitution  and that the State Government has no power  to establish or notify Gram Sabha. 6.   It will appear from the impugned judgment that its main thrust  is against the definition of ’village’ in Section  2 [t]  of  the  Act.  The other  findings  are  directed  more against  the  procedure  laid down in the Act  to  take  the various  steps for constituting the panchayats than  against the  substantial  provisions.   Before  we  deal  with   the findings  of  the High Court, we may usefully refer  to  the relevant provisions of the Constitution and the Act. 7.   The  provisions of Article 40, to give effect to  which the  73rd  Constitutional  Amendment was  effected  read  as follows:               "40.  Organisation of village panchayats,  The               States  shall take steps to  organise  village               panchayats and endow them with such powers and               authority  as may be necessary to enable  them               to function as units of self-government. 8.   The  aforesaid provisions neither define ’village’  nor give guidelines for organising village panchayats.  All that they  require  is  that  the  village  panchayats  howsoever organised have to be equipped with such powers and authority as  may be necessary to enable them to function as units  of

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self-government.  There is, however, no doubt that when  the Article  speaks  of  village panchayats as  units  of  self- government,  it has in view the Organisation of  the  lowest level  units  of self-governance in the hierarchy  of  self- governing,  democratic,  policy  making  and  administrative units.  In other words, the village panchayats are envisaged by  the  Article as the base democratic  institutions  of  a pyramid  of  the democratically  organised  and  functioning self-governing  units.  This being so, while organising  the village panchayats, what is necessary to be kept in mind  is [a]  that  they are to be the self governing  units  at  the lowest  end of the democratic polity, [b] that  being  self- governing  units, those who are governed by the  said  units and  for whose benefit they are going to operate, will  have either  a direct or an elective indirect  representation  in them;  [c]  that  they will have an  effective  say  in  the conduct  of their affairs including its plans, policies  and programmes  and their execution and [d] that thus they  will have not only a sense and satisfaction of participation  but also  an experience in the governance of their own  affairs. So  long as the village panchayats are organised to  achieve the  said objectives, the requirements of the  said  Article will  have  been complied with both in their spirit  and  in letter. 9.   We  may  now  turn  to  the  provisions  of  the   73rd Constitutional  Amendment  by which Part  IX  consisting  of Articles  243  to  243-0 has been  introduced  in  the  Con- stitution. 10.  Article  243  [g] defines ’Village’ to mean  a  village specified  by  the Governor by public notification to  be  a village  for  the purposes of the said Part and  includes  a group  of villages so specified.  It will be  apparent  from this  definition of ’village’ that on the one hand, it  does not stock to any particular, much less the vintage con- 259 cept  of village that the High Court has in mind, viz.,  the anthropologically  evolved and  sociologically  identifiable habitat  and  on the other, it gives the Governor  power  to specify  a  village  as he may deem  fit.   The  village  so specified  by  him  may include a group  of  villages.   The Constitution  permits the Governor to declare any  populated rural area as a village.  The village which the Governor has to specify is a village for the purpose of carrying out  the provisions  of Part IX of the Constitution and not  for  any other purpose.  Hence to bring in any particular concept  of village and to read into the said Article any  pre-conceived notion of village is unwarranted by law. 11.  Article  243  [b] defines ’Gram Sabha’ to mean  a  body consisting  of  persons registered in  the  electoral  rolls relating to a village comprised within the area of panchayat at the village level.  In other words, it is the  electorate of  the village panchayat whether the panchayat is  for  one village  or  a group of villages.  Article 243  [d]  defines ’panchayat’ to mean an institution [by whatever name called] of  self government constituted under Article 243B  for  the rural  areas.   This provision further makes it  clear  that even  the  expression ’panchayat’ is not of  any  particular significance.  What is of essence is that the institution so called  must be of self government in the rural  area  since the  panchayat  raj  envisaged  by  the  said  Part  of  the Constitution is for the rural as against the urban areas for which  a  provision is made in another part of  the  Consti- tution.  Much sentiment may not, therefore, be wasted on the expression  ‘ panchayat’.  The attention on the other  hand, has  to be focussed on the question whether the  institution

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so constituted is self-governing or not. 12.  The panchayats are to be constituted    at the village, intermediate and district levels and the "panchayat area" as defined by Article 243 [e] means the territorial area of the panchayat  whether at the village, intermediate or  district levels.  What is necessary to remember further is that while as  per  Article  243 [c] "intermediate level"  is  a  level between the village and district levels, as specified by the Governor,  the  ’district’ as per Article 243  [a]  means  a district  in a State the boundaries of which may be  changed by the State Government.  The district is not required to be specified  by the Governor whereas village and  intermediate levels  have to be specified by him for the purposes of  the said Part of the Constitution. 13.  Article 243-A states that a Gram Sabha which, as stated above, is the electorate of the village panchayat, may exer- cise  such powers and perform such functions at the  village level  as the legislature of the State may by  law  provide. In  other  words, the powers and functions  of  the  village panchayat  are  to  be  determined  by  a  State  enactment. Article  243-B  states  that  there  shall  be   constituted panchayats at the village, intermediate and district  levels in  accordance with the provisions of the said Part  of  the Constitution.   However, in a State having a population  not exceeding  20  lakhs,  it is not  obligatory  to  constitute panchayats at the intermediate level. 14.  Article  243-C  gives  direction  with  regard  to  the composition  of  panchayats at different  levels.   What  is necessary     for  our   purpose  to  note  from  the   said provisions is that throughout the State the number of 260 seats on each panchayat have to have, as far as practicable, a uniform ratio to the population comprised in the panchayat area.   The  panchayat area is further to  be  divided  into territorial constituencies and the constituencies are to  be so delimited as to maintain throughout the panchayat area  a uniform  ratio between the population of  each  constituency and  the  number  of  seats  allotted  to  it,  as  far   as practicable.  Further, the seats in the panchayat are to  be filled    by   direct   election   from   the    territorial constituencies.   The chairpersons of the panchayats at  the village level have to have representation in the  panchayats at the intermediate level if constituted and at the district level,  if  not  constituted, and the  chairpersons  of  the panchayats at intermediate level where they are  constituted are to have representation in the panchayats at the district level.   In  addition, the Article directs  that  the  State enactment  may  also provide for the representation  of  the Members   of  Parliament  and  of  the  State   Legislature. Chairpersons  of the panchayat at the village level have  to be  elected  in  such manner as the  State  legislation  may provide  while  the  chairpersons of the  panchayat  at  the intermediate  level or district level are to be  elected  by and from amongst the elected members thereof. 15.  Article 243-D makes provision for reservation of  seats for  the Scheduled Castes, Scheduled Tribes including  women belonging to Scheduled Castes/Scheduled Tribes and also  for other  women in the panchayats at all the  levels.   Article 243-E  provides for the term of the panchayat which is  five years.  Article 243-F provides for disqualifications for the membership of the panchayat.  Article 243-G speaks of powers functions  and  responsibilities  of  the  panchayat  to  be determined by the legislature of the State.  It states  that the  legislature of a State may by law endow the  panchayats with such powers and authority as may be necessary to enable

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them to function as institutions of self government and such law  may contain pro. visions for the devolution  of  powers and  responsibilities  upon panchayats  at  the  appropriate level,  subject  to  such conditions  as  may  be  specified therein  with  respect to [a] the preparation of  plans  for economic  development  and  social  justice;  and  [b]   the implementation  of  schemes  for  economic  development  and social  justice as may be entrusted to them including  those in relation to the matters listed in the Eleventh  Schedule. The Eleventh Schedule mentions as many as 29 matters some of which are necessary to be enumerated here to point out  that it  is only a financially and administratively  viable  unit which  can undertake the schemes of development relating  to them.  They are: [1] Minor irrigation, water management  and watershed   development,  [2]  Social  forestry   and   farm forestry,   [3]  Small  scale  industries,  including   food processing  industries,  [4]  Khadi,  village  and   cottage industries, [5] Rural housing, [6] Roads, culverts, bridges, ferries,  waterways  and other means of  communication,  [7] Rural    electrification,    including    distribution    of electricity, [8] Nonconventional energy sources, [9] Poverty alleviation  programme , [10] Education,  including  primary and   secondary   schools,  [11]  Technical   training   and vocational  education, [12] Markets and fairs,  [13]  Health and sanitation, including hospitals, primary health  centres and  dispensaries,  [14] Women and child  development   [15] Social  welfare,  including welfare of the  handicapped  and mentally retarded  and [16] Welfare of the weaker  sections, and in particular of the Scheduled Castes and 261 the Scheduled Tribes. 16.  Article   243-H   speaks  of  power  that   the   State legislature may give to the panchayats to levy, collect  and appropriate  taxes,  duties,  tolls and  fees  and  also  of assigning  such of them as arc levied and collected  by  the State  Government,  to provide for  grants-in-aid  from  the Consolidated  Fund of the State and also to provide for  the constitution  of  Funds for crediting all  moneys  received, respectively  by or on behalf of the panchayats and for  the withdrawal  of the moneys therefrom.  Article  243-1,  among others, provides for the constitution of Finance  Commission by  the  Governor  of  the State  to  review  the  financial position  of the panchayats at the end of every five  years. Article  243-J requires the State to make law to  make  pro- vision  with respect to the maintenance and auditing of  the accounts of the panchayats. 17.  Article 243-K provides for a State Election  Commission to conduct, supervise, direct and control the elections  in- cluding the electoral rolls.  Article 243-0 states that  the validity  of  any  law  relating  to  the  delimitation   of constituencies   or   the  allotment  of   seats   to   such constituencies  made or purporting to be made under  Article 243-K, shall not be called in question in any court, and  no election to any panchayat shall be called in question except by  an election petition presented to such authority and  in such  manner as is provided for by or under any law made  by the  Legislature  of  a State.  It is in the  light  of  the aforesaid  provisions  of the Constitution that we  have  to examine the provisions of the State Act. 18.  As  stated earlier the State enactment, viz,  the  U.P. Panchayat  Raj Act, 1947, has been amended and brought  upto date  to bring it in conformity with the amended  provisions of  the  Constitution, viz., Article 243 to  Article  243-0. Section 2 [g] of the Act accordingly defines ’Gram Sabha’ to mean  a  body  established  under  Section  3  of  the   Act

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consisting of persons registered in the electoral rolls  re- lating  to  a village comprised within the area  of  a  gram panchayat,  and  ’gram  panchayat’ has  been  defined  under Section  2 [h] to mean the gram panchayat established  under Section  12 of the Act.  Section 2 [hh] of the  Act  defines Finance   Commission   to  mean   the   Finance   Commission constituted  under Article 243-1.  Section 2  [hhh]  defines ’Kshettra   Panchayat’  which  is  the  panchayat   at   the intermediate  level,  and  it has the  same  meaning  as  is assigned  to it under clause [6] of Section 2 of  the  Uttar Pradesh  Kshettra Panchayats and Zila Panchayats  Adhiniyam, 1961  whereas ’Zila Panchayat’ which is the  district  level panchayat  will  have the meaning assigned to it  under  the said Adhiniyam by clause [11] of Section 2 thereof Section 2 [kk]  defines ’State Election Commission’ to mean the  State Election  Commission  referred to in Article  243-K  of  the Constitution. 19.Section  2 [t] of the Act defines ’village’ to  mean  any local  area recorded as a village in the Revenue  record  of the  district in which it is situate and includes  any  area which the State Government may, by general or special order, declare to be a village for the purpose of the Act. 20.  Section 3 of the Act provides for the establishment  of Gram Sabha for a village or a group of villages by such name as  may  be specified.  It also states that where  the  gram sabha is established for a 262 group  of  villages,  the name of  the  village  having  the largest  population, shall be specified as the name  of  the gram sabha. 21.  Section  5-A  gives the disqualifications of  a  person from  being  chosen  as  and for being  a  member  of  grain panchayat.   Section  6  states that a member  of  the  gram panchayat  shall  cease  to be such member if  his  name  is deleted  from  the  electoral  roll  of  the   constituency. Section 9 states that for each territorial constituency of a gram sabha an electoral roll shall be prepared in accordance with  the provisions of the Act under  the  superintendence, direction  and control of the State Election Commission  and that  it  shall be published in the  prescribed  manner  and shall, subject to any alteration, addition or  modification- made  under or in accordance with the Act, be the  electoral roll  for the territorial constituency concerned.   It  also gives  the  qualifications for being an elector  and  states that  every person who is not less than 18 years of  age  on the first day of January of the year in which the  electoral roll  is prepared, will be entitled to be registered in  the electoral  roll for the territorial constituency. It is  not necessary  to  refer  to the other provisions  of  the  said section regarding the qualifications, except to  sub-section 11  thereof which states that the State Election  Commission may  for the purposes of preparation of the  electoral  roll for a territorial constituency adopt the electoral roll  for the Assembly constituency prepared under the  Representation of  the People Act, 1950 for the time being in force so  far as it relates to the area of that territorial  constituency. Section 9-A provides that a person whose name is entered  in the  electoral  roll  for the  territorial  constituency  is entitled  to  in any election and is eligible  for  election nomination  or  appointment  to  any  office  in  the   gram panchayat.  However, a person who has not completed the  age of 21 years shall not be qualified to be elected as a member or office bearer of the gram panchayat. 22.  Section  11 provides for the meetings and functions  of gram   sabha.   Subsection  [3]  thereof  speakers  of   the

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functions  of  gram sabha which, among  others,  consist  of considering [a] the annual statement of accounts of the gram panchayat,  the  report of administration of  the  preceding financial year and the last audit note and replies, if  any, made  thereto,  [b]  the report in  respect  of  development programmes  of the Gram Panchayat relating to the  preceding year  and the development programmes proposed to  be  under- taken  during the current financial year; [c] the  promotion of  unity and harmony among all sections of society  in  the village,  [d]  programmes  of  adult  education  within  the village,  and [e] such other matters as may  be  prescribed. Sub-section  [5] thereof requires gram sabha to perform  the functions   of   [a]   mobilising   voluntary   labour   and contributions  for  the community  welfare  programmes;  [b] identification  of beneficiaries for the  implementation  of development  schemes  pertaining  to the  village;  and  [c] rendering  assistance, in the implementation of  development schemes pertaining to the village. 23.  Section  11-A  provides for Pradhan and  Up-Pradhan  of gram  panchayat  who  are  to  be,  chairperson   and  vice- chairperson  respectively  thereof under the Act.   It  also provides  for  reservation of offices of  Pradhans  for  the Scheduled Castes, Scheduled Tribes and the backward classes. Section 11-B provides for the direct election 263 of Pradhan or chairperson by the electorate in the panchayat area  from  amongst themselves.  Section 11-C  provides  for election of Up-Pradhan by the members of the gram  panchayat from  amongst themselves.  The term of both the Pradhan  and Up-Pradhan is co-terminus with that of the grain panchayat. 24.Section  11-F provides for declaration of panchayat  area and states that the State Government may by notification de- clare  any  area comprising a village or group  of  villages having  so far as practicable, a population of 1000 to be  a panchayat area by such name as may be specified.  The  first proviso  to the said section, however, states that  for  the purposes  of  declaration  of a panchayat  area  no  revenue village or any hamlet thereof shall be divided.  The  second proviso  makes  a provision for the hill  districts  of  the State and states that if a village or group of villages does not  have  population  of 1000,  the  State  Government  may declare  the area within a radius of 5 kms. from the  centre of  the  village to be panchayat area though such  area  may have a population of less than 1000.  Sub-section [2] of the said  section  also gives power to the State  Government  to modify  the panchayat area or to alter the name of the  area or  to declare that any area shall cease to be  a  panchayat area  on  the  request  of a  gram  panchayat  concerned  or otherwise. 25.Section  12  provides  for  the  establishment  of   gram panchayat  for  every panchayat area.  Section  12  [1]  (c) states that the grain panchayat shall consist of a panchayat and  in case of a panchayat area having a population of  [1] one  thousand,  the panchayat will have nine  members,  [ii] where the population is more than one thousand but not  more than  two thousand,it will have eleven members,  [iii]  when the  population is more than two thousand but not more  than three thousand, it will have thirteen members; and [iv] when the  population  is more than three thousand, it  will  have fifteen members.  Thus Section 12 [1] [c] read with  Section 11-F-[1],  gives  a parameter of the size of  the  panchayat area mainly on population basis in the non hill areas and on geographical basis in the hill areas and provides that there shall  be a panchayat of a Pradhan and nine members  for  at least every village in the non hill area having a population

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of 1000, and of even less in the hill area.  The territorial constituencies for election as members to the gram panchayat are to be formed in such a manner that the ratio between the population  of  each constituency and the  number  of  seats allotted  to  it, shall so far as practicable, be  the  same throughout  the panchayat area.  Each territorial  constitu- ency of a gram panchayat is to be represented by one  member in  the  gram panchayat.  Not less than 1/3rd of  the  scats earmarked   for  Scheduled  Castes,  Scheduled  Tribes   and backward  classes  under  sub-section  [5]  (a)  are  to  be reserved for the women of those categories whereas not  less than  1/3rd  of  the  total number  of  scats  in  the  gram panchayat shall be reserved for women. 26.The superintendence, direction and control of the conduct of the election to the office of the Pradhan and  Up-pradhan or  a member of the gram panchayat is entrusted  by  section 12-BB to the State EIection Commission.  An application  for questioning the elections is to be made to such authority as may  be prescribed.  Section 12. I bars the jurisdiction  of civil  ’courts to question the legality of any action  taken or any decision given by an officer or author- 264 ity.  Section 14 provides for the removal of Pradhan and Up- Pradhan  in certain circumstances.  Section 15 mentions,  as many as 30 functions of gram panchayat which are of the same pattern  as those mentioned in the Eleventh Schedule of  the Constitution,  to  some of which we have  made  a  reference earlier.   The only additional function entrusted under  the Act  is of the preparation of plan for economic  development of the area of the Gram Panchayat. 27. Section 15A requires the gram panchayat to prepare every year a development plan for the panchayat area and to submit it to the Kshettra panchayat concerned and Section 16  makes provision for assigning to it any or all die following func- tions,  viz.,  [a] management and maintenance  of  a  forest situated   in   the  Panchayat  area;  [b]   management   of wastelands,  pasture lands or vacant lands belonging to  the Government   situated   within  the  Panchayat   area,   [e] collection  of  any tax or land revenue and  maintenance  of related  records.  Section 17 refers to the powers  of  gram panchayat as to public streets, waterways and other matters. Section 18 provides for the improvement of sanitation.  Sec- tion 19 provides for maintenance and improvement of  schools and  hospitals.   Section 20 provides for  establishment  of primary  school, hospital, dispensary, road or bridge for  a group of gram panchayats.  Section 24 provides for power  of a  gram  panchayat to contract for collection of  taxes  and other dues.  Section 25 gives power to the gram panchayat to appoint such staff as may be necessary.  Section 32 provides for the constitution of a Gaon fund for each gram panchayat. Section 32-A gives power to the State Government to  consti- tute  a  Finance  Commission.  Section 34  states  that  all properties  situated  within  the  jurisdiction  of  a  gram panchayat  shall vest in and belong to the  gram  panchayat. Section 36 gives power to the gram panchayat to borrow money whereas  Section 37 gives it power to levy taxes  and  fees. It is not necessary to refer to other provisions of the  Act for our purpose. 28.We  may now refer to the criticism by the High  Court  of certain  provisions  of  the Act as being  ultra  vires  the Constitution. 29.As  stated earlier, the main thrust of the  High  Court’s judgment is against the concept of ’Village’ as incorporated in the definition of "village" in Section 2 [t] of the  Act. The  High Court has found fault with the said definition  on

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two counts.  According to it, firstly, Section 2 [t] is  in- consistent  with the concept of village as  contemplated  by Article  243 [g] of the Constitution and  secondly,  whereas the  said  Article  requires the Governor of  the  State  to specify  the village, Section 2 [t] gives the power  to  the State Government to declare it, 30.As  regards the alleged difference in the  definition  of "village"  in  the  Act and in  the  Constitution,  we  have already  referred  to  the  fact  that  Article  40  of  the Constitution  does  not define ’village’ as such.   It  only refers to the Organisation of "village panchayats" as  units of self-government. 31.’Village’ has been defined in the Shorter Oxford  English Dictionary [1993 Edition] to mean "a self-contained group of houses and associated buildings, usu. in a country area-, an inhabited  place  larger than a hamlet and  smaller  than  a town;... a small self-contained district or community 265 within   a  city  or  town,  regarded  as  having   features characteristic  of  a  village".   The  Law  Lexicon  by  P. Ramanatha  Aiyar [1987 Ed.] states that  ’village’  includes [a]  a  village-community;  [b]  village-lands;  [c]  rivers passing  through  or by village-lands; and [d]  a  group  of villages.   The expression ’village’ connotes ordinarily  an area  occupied  by  a  body of  men  mainly  dependent  upon agriculture  or occupations subservient thereto.   When  the area  is  occupied  by persons who  are  engaged  mainly  in commercial  pursuits, rural areas in the vicinity of a  town grow into a suburb of the     town. 32.  The Encyclopedia Americana [1983 Ed.] [Vol. 28]  states that village is               "a  type  of community,  generally  small  but               without   exact  or  commonly  accepted   size               limits.  Generally, in the United States,  the               village is thought to be intermediate  between               the hamlet [a settlement with several families               and some form of commerce but no more than  50               people]  and  the town [generally  over  1,000               people]. Dealing  with  the origin and evolution village,  it  states that-               "the  village  is the typical  form  of  rural               settlement  in  most of the world   in  Europe               [except  for  Great  Britain]  ’in  Asia,   in               Africa,  and in much of South America.....  It               often seems to be the result of the settlement               of  lands  that previously  were  only  thinly               occupied   by  indigenous   populations,   but               probably  also derives from the  emergence  of               clear-cut private proprietorship of land.   In               much of Europe and in many other areas of  the               world,  communal land ownership  prevailed  in               the  past, and this property  arrangement  was               one  basis  for  the  village  form  of  rural               settlement,  the community being set amid  the               tillage and grazing lands."               x        x        x        x               "  Growing awareness of the  nearly  universal               appearance   of   the   agricultural   village               prompted  many  social theorists in  the  19th               century  to  suggest  that  such   Communities               represented     a  universal  stage  in  human               evolution.   Such  simplifying  theories  lost               support as evidence of the great diversity  of               human  cultures  and the Paths of  change  was

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             accumulated.    The  interpretation   of   the               village   pattern   is  now  more   nearly   a               functional  one.   With  settled  agriculture,               village     orientation    provides     mutual               protection, sociability, a measure of economic               specialisation  [such as handicrafts], and  at               least the of local government.               Since    size-limits   will   not    precisely               distinguish  villages  from  other  types   of               communities, the question arises as to whether               the  term  has a precise  All  communities  or               settlements   called   villages   in   popular               language   or  technical  studies  cannot   be               brought   within   a   common   definition....               Generally, however, a village isa  residential               and   trading  center  for   a   predominantly               agricultural    its   social   controls    are               predominantly  traditional and informal;  more                             formal administration and government arc  typi -               cal of cities and towns.  Its self-sufficiency               may  be nearly complete, as in some  parts  of               the  Far East and Latin America, or  seriously               impaired      by     modem      tranportation,               communication,   and   agencies   of   central               government.   The population of  the  village,               unlike that of most cities and many towns,  is               self-recruited rather Om immigrant.  This, and               the   traditional   informality   of    social               standards   and  controls,  lends  a  distinct               quality   of   homogeneity   that   the   more               cosmopolitan center does               266               not have.               The collapse of the theory that the village is               the  basic community of all civilizations  did               not end the idealization of the village.   Yet               even  the  informal  and  traditional   social               controls  of  the  village  can  be  extremely               restrictive, certainly more so than the  fomal               tolerance  of  difference  that  the  cultural               heterogeneity   of  the  city  encourages   or               requires.   And  it  cannot  be  assumed  that               villages  are democratic.   European  villages               are often dominated by one or a few  families,               some  of which may claim descent  from  feudal               rulers.   The village in India is often  ruled               by a council [panchayat] of the leading  caste               or by a few principal landlords.  Even in  the               United  States,  with its  short  history  and               absence    of   an   officiallyu    recognized               aristocracy,  leading families am more  likely               to  receive  deference  in  villages  than  in               larger  and more impersonal communities.   The               integration of village life, or lack of social               problems  and  tensions,  has  also  been  ex-               aggerated.   Conflicts  may  smolder  or  burn               brightly,  all  the more because  the  parties               know each other and personalize the antipathy.               In Europe and Asia, the village has  exhibited               a remarkable power of survival amidst currents               of  rapid  social change.  Rural  America  has               been  much  more  profoundly  affected   bythe               encroachments    of    an     urban-industrial               civilization.   Many small towns,  technically

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             villages, have virtually di--appeared as their               economic and other social functions have  been               absorbed  by nearby cities.  Village life  may               endure  a while longer in the  United  States,               but  the sense of continuity and communal  in-               tegrity  are difficult to maintain  with  high               rates of residential mobility and in the  face               of  steady  inroads of  an  essentially  urban               civilization.               The  village  community may be  defined  as  a               group   of  people  who  live  ill   permanent               dwellings   in  a  defined   territory   which                             includes arable land sometimes held in  common .               If cattle is kept, as is often the case, it is               pastured  on  non-cultivated  meadowland  over               which  the  community claims  right.   Further               characteristics include a predominance of  ag-               ricultural  occupations, a close  relationship               to  the natural environment,  strong  internal               cohesion,  and a relative absence of  internal               stratification     and    of     occupational,               territorial, and vertical social mobility.  As               such, the village is a specific type of  rural               settlement, but not the only One.               x        x        x        x        x               The scientific study of the village  community               did  not  start until the middle of  the  19th               century...... Sir Henry Maine [1822-1888], one               of  the first English writers on  this  topic,               held the theory that the village community was               originally  founded by a group of kin  related               people   who   settled  independently   in   a               specified   spot.   In  time,   the   original               households  branched  out into  many  separate               ones,  clearing more load as the  need  arose.               Occasionally they included strangers, who were               sometimes adopted but more often relegated  to               second class membership, tolerated rather that               accepted.   If one family became extinct,  its               share  of  land  was returned  to  the  common               stock.  Only in later times, under pressure of               more  highly developed  political  structures,               did the village community  become feudalistic.               the  land  was  then  owned  by  a  ruler  who               received   tribute   in  kind   and   promised               protection     in    return.     Often     the               responsibilities of supervision and collection               were  transferred  to  other  members  of  the               aristocracy.   Maine based his case  for  this               presumed  development upon analysis  of  Roman               law [Ancient Law, 1861] and upon practices  in               Russia, southeastern European countries,  anti               specifically  India, where he had carried  out               extensive field research [Village com               267               munities in the East and West, 1871].               Several  other  scholars  criticized   Maine’s               theoretical             reconstructions-Modern               anthropologists  and  sociologists  take   the               position  that both developments  took  place.               They   recognize   that  the   evolution   and               structure      of  human   settlements      in               general, and of village unities in particular,               are closely connected with specific historical

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             developments  and ecological,  sociopolitical,               economic and religious circumstances which are               different  from  place to  place.   With  this               recognition,  questions  of  absolute  origins               have  generally been replaced by an  increased               interest  in  the structure  and  function  of                             village  communities, in an attempt to  gain a               basic understanding of the essential nature of               living arrangements therein.               x        x        x        x        x               As  their  characteristic  features,   peasant               villagers  show strong internal  cohesion  and               tendencies  to  restrict membership  to  those               born  within  the community.  Rules  of  local               endogamy   sometimes  reinforce  this   trend.               Membership in the community is demonstrated by               participation  in  religious  rituals,   which               frequently  stress the power of the  community               to  deal  with the  supernatural  rather  than               reliance upon individual piety.  Economically,               a   peasant  produces  mainly  for   his   own               household’s consumption, although he also uses               part  of his product to exchange in  a  market               for  other goods and services.  These  markets               are  often local and differ in structure  from               those  in  the cities.   Although  some  city-               produced goods reach the peasant level,  there               is a tendency to limits the flow of city goods               into the community.               Politically, peasant villages are now  usually               parts  of  national states  and  theoretically               possess the rights and duties involved in such               membership.   But  the village  community  has               frequently  retained  mechanisms  of  internal               control,  whether through  government-approved               local  leadcis or through informal  leadership               and  community sanctions.   Emotional  attach-               ments  face  inward.  The  individual’s  first               loyalty  is  to his family, the  to  his  com-               muaity,  and only then to whatever is  beyond.               The various elements of this  characterization               may   be  developed  more  strongly  in   some               villages  than in others, but as a  type  they               are  recognizable  and clearly  distinct  from               tribal  groups, farming settlements, and  city               formations.  " 33.  It  is common knowledge that the needs  of  the  people change with the development in the economic, scientific  and technologic   fields  as  also  with  the  developments   in transport  and  communication.  With them,  the  concept  of selfsufficiency  and  the  means, mode and  range  of  self- governance  also change.  What is more, the units  of  self- governance  at the lower level being interrelated and  inte- grated with those at the higher levels as parts of the whole scheme of administration and development in the State,  have to  respond to and fall in line with the growth in the  size and  operation  of the units at the higher level to  form  a coordinated democratic polity and administrative  machinery. The  concept  of grassroot or  lowest  level  administration must,  therefore,  necessarily change with the  advance  and progress at other levels.  The governing units at all levels have to fit in in a pattern, and a scheme for administration both  for law and order and economic growth.  They  have  to act as vehicles of overall stability and progress.  For that

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purpose,  their constitution and functioning have to  be  in conformity  with the larger social, political  and  economic goals. 34. Hence there cannot be any immu- 268 table social, political, economic or organisational  concept of  village  as  a self governing  unit.   In  a  developing country  like  ours, where the population is  growing  fast, where  the  society  is  in ferment  on  all  fronts,  where divisive forces of all kinds abound, where the vast majority of population is illiterate and is the victim of  ignorance, superstition,  blind-faith,  biases and prejudices,  and  is shackled by tradition, and irrational customs and practices, there  is  an  urgent  need to evolve  means  to  unite  and integrate the society, to expose the populace to larger  and higher  goals, to imbibe in them the wider perspectives  and to forge a socially cohesive front for breaking the barriers of  race, caste, class, religion and region rather  than  to pander  to  the age-old, self-centered physical  and  mental barriers.   As stated earlier, Article 40 not only does  not define "village" but also does not require that the  village panchayats   should  be  organised  on  the  basis  of   any particular concept of village much less the vintage  concept which appears to have appealed to the High Court.  There  is further  nothing  in  the  Mahathma  Gandhi’s  advocacy   of "village panchayat raj" from which the High Court has  taken support  to suggest that the village that Mahatmaji  had  in mind  was of a particular description or dimension.   It  is amusing  in  this  respect to note that the  High  Court  in support  of  its  concept of village has even  gone  to  the extent of observing that "it must be remembered that in con- sidering the aspirations of the people, more so at the first level  of democracy, the phenomena of a case of identity  of the  people,  their  sentiments,  feelings  and  chauvinism, cannot  be forgotten"  the considerations which  were,  with respect,  farthest from the mind of Mahathmaji  and  against which   he   fought  throughout  his  life.    If   separate identities,  chauvinism, divisible sentiments  and  feelings arc  nurtured  from the grassroot level, they are  bound  to erode the foundation of the unity and integrity of the coun- try and should be the last thing on the social and political agenda  of the country.  On the other hand, the need of  the day  is  to create social, political and  economic  entities crossing  all barriers and wedded to the nationhood  as  the ultimate  goal.  Anthropological and  sociological  entities may   be   natural  so  far  as  the  blood   and   familial relationships  and  attachments go and have their  place  in certain  limited  spheres.   But they have  no  place  while shaping democratic political and administrative units.   Nor are  they  necessarily  conducive  to  social  and  economic progress.  On the other hand, they may prove and have in the past  proved  a  positive  hindrance  to  them.    Although, therefore,  it  is  true  that most  of  the  villages  have developed with the initial settlement of a family or a group of  families  belonging to either the same tribe  or  ethnic group   and  in  that  sense  have  their   historical   and sociological identity, these identities are not  necessarily healthy  or  desirable  for  promoting  wider  and   diverse interests  and attaining larger goals.  On the  other  hand, they  often prove insurmountable blockades to promoting  the ideals enshrined in the Preamble of our Constitution,  viz., social,  political and economic justice; liberty of  thought and  expression,  belief,  faith and  worship;  equality  of status  and  of  opportunity; and  fraternity  assuring  the dignity of the individual and the unity and integrity of the

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nation.   Sometimes,  smaller  the  social,  political   and administrative  entities, the greater the dominance  of  one section or the other and deeper the prejudices.  The need is to   organise   viable  social,  political,   economic   and administrative units of optimum size 269 at the lowest level on a rational basis keeping in mind  the size  of  population,  the  needs  of  social  and  economic development,  availability of resources, the  transport  and communication facilities, convenience of administration  and other  relevant  factors.  Old is not always gold  and  mere historic accidents through which the villages of the concept of High Court have developed, cannot justify their perpetua- tion  as  political and administrative units to  attain  the modem  goals of social and economic progress or furnish  the rationale  for their survival as basic democratic  entities. What  is further forgotten is that over the years, not  only the  population in the rural areas has grown enormously  but the  complexion  of  the rural areas has  also  undergone  a change.   With  the increasing pressure on land,  there  has been  a  steady migration from the rural to  the  urban  and semi-urban  areas.  Some villages are almost deserted  while others  survive  much below the poverty line.  At  the  same time,  some  have  emerged as small  pockets  o  comparative prosperity,  thanks  to marginal industrial  and  commercial activities  around  them and the nearness to the  urban  and semi-urban areas.  There is further a limit to the number of village  panchayats  which may be constituted with  all  the overhead expenses involved in the exercise which must have a rational  relation to the result sought to be achieved.   In the  State o U.P., there are 1,20,000 villages.  Before  the present  exercise  of constituting  the  village  panchayats under  the Act, there were 74,000 gram sabhas which are  now reduced  to 55,000.  With the nature and range of  functions entrusted  to the new village panchayats under the Act,  and the expenditure that may have to be incurred in constituting and  running them, it can hardly be said that their  number, structure  and Organisation militate in any way against  the concept  of democracy and the principle of  self-governance. Section  11-F (1) by laying down for non-hilly areas a  norm of  a village panchayat for every 1000 population as far  as practicable  and  for hilly areas, for  every  5  kilometres radiusdistance,  has in fact tried to observe the  principle of self-governance as closely as possible. 35.  The  first  premise of the High Court’s  reasoning  is, therefore,  faulty  and it has led it to  build  an  edifice which  is equally defective.  It is for this reason that  we arc  unable  to  appreciate the  portions  of  the  impugned judgment  dealing with the sentiments, feelings,  chauvinism and will of the people [pages 16-201; holding that power  to specify  villages  vests with the people and  not  with  the State  Government and that the villages cannot simply  be  a revenue village [pages 21 to 25]; holding that the  Governor is  obliged  to specify a village giving due regard  to  the wishes of the people [pages 26-27]; holding that  provisions of  the Act referring to establishment of Gram Sabha  for  a group of villages are ultra vires, and beyond the  intention of the Constitution [pages 3233]; that status of Gram  Sabha has been compromised and belittled in the Act itself  [pages 37-381;  holding that the Act in explaining  the  expression ’gram  sabha’ offends the Constitution and negates the  con- cept  of local self-government [page 40]; and  stating  that Section 11-F gives rise to misunderstanding as it has  scope for  overlapping and duplication in notifying and  declaring areas  comprising  a  village  or  group  of  villages  into

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panchayat area [pages-59]. 36.  As pointed out above, Article 243 [g] 270 of  the  Constitution  defines village to  mean  "a  village specified by the Governor to be    village  and  includes  a group of villages so specified".  In other words,  according to  this definition, any existing village or a group of  the existing  villages  may be specified by the  Governor  as  a village for the purposes of organising a village  panchayat. The  definition  begs the question as to what is  a  village which the Governor can specify as a village for the purposes of constituting the "village panchayat".  It is not disputed that almost all villages in the State have been recorded  in the  revenue records of the respective district,%  in  which they are situate.  No material has been placed on record  to show  that villages have been recorded as such in any  other record.   There  may be some villages  and  new  settlements which  are  not so recorded.  There is,  therefore,  nothing wrong  if  the Governor specifies the  revenue  villages  as villages and in addition also those villages and settlements which are not so recorded in the revenue records as villages for  the  purpose of constituting village  panchayats.   The "revenue  village"  is, therefore, a  documented  ready-made concept  of village and the Governor while acting under  Ar- ticle 243 [g] for specifying the village may adopt the  same as  village.  No restriction has been placed by Article  243 [g]  on the Governor for accepting the revenue village as  a village for the purposes of constituting village  panchayat. In  fact,  the  Governor  has been  empowered  by  the  said constitutional provision to declare even a group of villages as a village.  If this is so, we are unable to appreciate as to why the definition of village in Section 2 [t] will  fall foul  of the provisions of Article 243 [g].  Section  2  [t] not only speaks of villages recorded in the revenue  records as such but also includes in the definition, any area  which the State Government may by general or special order declare to be a village for the purposes of the Act.  The concept of village is not foreign either to the Constitution or to  the State  legislation.  Apart from the U.P. Land  Revenue  Act, the concept of village finds place in other State enactments such  as  U.P. Village and Road Police Act,  1873  and  U.P. Village Sanitation Act, 1892, U.P. Village Courts Act, 1892, U.P. Village Panchayats Act, 1920 which was replaced by  the unamended U.P. Panchayat Raj Act, 1947, U.P. District Boards Act, 1922, U.P. Local Rates Act, 1914 which latter two  Acts were  replaced  by  the  U.P.  Kshettra  Samities  and  Zila Parishads  Adhiniyam,  1961.   If, therefore,  there  is  no restriction  placed by the Constitution on the  Governor  in accepting  any  inhabited  rural are as  a  village,  it  is difficult  to  appreciate how the Act is  violative  of  the Constitution  when  the State Government declares  any  area including a revenue village as a village.  In any case,  the Court  cannot substitute its concept of village for that  of the State Government. 37.  As regards the objection of the High Court that whereas Article  243  [g]  requires  the  Governor  to  specify  the village, the Act gives this power to the State Government to do so, the High Court has failed to notice the provisions of the  Constitution which equate the Governor with  the  State Government  in exercise of his functions except where he  is by or under the Constitution required to exercise the  func- tions  in his discretion.  In this connection, we may  refer to  the provisions of Article 163 of the Constitution  which state  that there shall be a Council of Ministers  with  the Chief Minister at the head to aid and advise the Governor in

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the exercise of his 271 functions except when they are to be exercised by him  under the Constitution in his discretion.  It is also not disputed that when a Minister takes action, according to the rules of business, it is both in substance  and in form the action of the Governor. Under the Constitution, therefore, while exercising the  non-discretionary  functions, the Governor  cannot  act without  the aid and advice of the Council o Ministers.   To do  so  will cut at the very root of the cabinet  system  of Government  we  have adopted.  In this  connection,  we  may refer  to  the decision of this Court in  Samsher  Singh  v. State  of Punjab [(1974) 2 SCC 831] where  the  Constitution Bench  of seven learned Judges has held that  the  executive power  of the State is vested in the Governor under  Article 154 [1] of the Constitution.  The expression ’State’  occurs in  Article  154  [1] to bring  out  the  federal  principle embodied  in  the  Constitution.  Any action  taken  in  the exercise  o the executive power of the State vested  in  the Governor under Article 154 [1] is taken by the Government of the  State  in the name of the Governor as  will  appear  in Article  166  [1].  There arc two  significant  features  in regard  to  the executive action taken in the  name  of  the Governor.   First, Article 300 states, among  other  things, that  the  Governor may sue or be sued in the  name  of  the State.   Second, Article 361 states that proceedings may  be brought against the Government of the State but not  against the  Governor.   The reason is that the  Governor  does  not exercise the executive functions individually or personally. Executive  action taken in the name of the Governor  is  the executive action the State.  Paragraph 48 of the said  judg- ment explains the position of law in that behalf  succinctly as follows:               "The President as well as the Governor is  the               constitutional or formal head.  The  President               as  well as the Governor exercises his  powers               and functions conferred on him by or under the               Constitution  on  the aid and  advice  of  his               Council  of Ministers, save in  spheres  where               the  Governor  is  required by  or  under  the               Constitution to exercise his functions in  his               discretion.     Wherever   the    Constitution               requires the satisfaction of the President  or               the Governor for die exercise by the President               or the Governor of any power or function,  the                             satisfaction  required by the  Constitution  i s               not the personal satisfaction of the President               or  Governor  but  the  satisfaction  of   the               President  or Governor in  the  constitutional               sense  in  the Cabinet system  of  Government,               that  is,  satisfaction  of  his  Council   of               Ministers   on  whose  aid  and   advice   the               President or the Governor generally  exercises               all his powers and functions.  The decision of               any  Minister or officer under Rules or  Busi-               ness  made under any of these two Articles  77               [3]  and  166  [3]  is  the  decision  of  the               President or the Governor respectively.  These               articles  did no provide for  any  delegation.               Therefore the decision of a Minister or office               under the Rules of Business is the decision of               the President or the Governor.  " 38.  Admittedly, the function under Article243  [g] is  to be exercised by the Governoron  the aid and advice of  his

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Council  of Ministers.  Under the rules of business made  by the  Governor under Article 166 [3] of the Constitution,  it is in fact an act of the Minister concerned or of the  Coun- cil of Ministers as the case may be.  When the  Constitution itself  thus equates the Governor with the State  Government for  the purposes of the relevant function, the provision in Section  2  [t]  which  realistically  gives  the  power  of declaring the village to the State Government, cannot be 272 said to be inconsistent with or contrary to Article 243 [g]. Further, Section 3 [60] (c) of the General Clauses Act, 1873 defines ’State Government’ to mean Governor which definition is  in conformity with the provisions of  the  Constitution. We  are, therefore, unable to appreciate the  conclusion  of the High Court that Section 2 [t] is ultra vires Article 243 [g] of the Constitution. 39.  We  are also unable to appreciate the reasoning of  the High  Court that under the Act the State  Government  cannot declare the village by special or general order as  required by Section 2 [t] because Article 243 [g] of the Constitution requires  the Governor "to specify the village by  a  public notification".   Admittedly,  the general or  special  order issued  by the State Government is always published  in  the official  gazette.   In any case, the  order  declaring  the villages  for the purposes of Section 2 [t] in  the  present case   was  gazetted.   There  is  a  hierarchy   of   legal instruments  such as law, ordinance, order,  bye-law,  rule, regulation  and  notification.   It is  recognised  even  by Article 13 [3] [a] of the Constitution and Section 3 [29] of the  General  Clauses  Act, 1897.  All  the  orders,  rules, regulations  and  notifications when made or issued  by  the State  Government  are  made or issued in the  name  of  the Governor by the functionary of the concerned Ministry  named in  the rules of business as per the provisions  of  Article 166  of the Constitution.  We have already pointed out  that in view of the provisions of Article 154 and of Article  163 read with Article 166 of the Constitution, ’Governor’  means the  Government  of the State and  all  executive  functions which  arc  exercised  by the Governor except  where  he  is required under the Constitution to exercise the functions in his  discretion, are exercised by him on the aid and  advice of  the  Council  of  Ministers.  Hence,  whether  it  is  a notification  issued  by  the Government  or  a  general  or special    order   issued   by   the    State    Government, constitutionally both are the acts, of the Governor. 40.  In the present case, by the notification dated 9th May, 1994  issued under Section 96-A of the Act by die  Governor, the  powers  of  the State Government under  Section  3  and Section  11-F  of the Act were delegated  to  the  Director, Panchayat Raj, U.P., Lucknow [hereinafter referred to as the ‘Director’].   Pursuant to this delegation, on  4th  August, 1994  the  Director issued  notification  establishing  gram sabhas  under Section 3 and declaring panchayat areas  under Section 11-F of the Act.  This was a composite  notification both  for establishing gram sabhas and  declaring  panchayat areas.   It is true that neither in the  notification  dated 9th May, 1994 delegating powers under Sections 3 and 11-F to the Director nor in the notification dated 4th August,  1994 establishing grain sabhas and declaring the panchayat areas, there is a mention either of Section 2 [t] of the Act or  of the  power delegated to declare the village under  the  said provision,  However, keeping in mind the scheme of  the  Act and the provisions of Sections 2 [t], 3 and 11-F, it is clew that  Section 2 [t] merely defines ’village’ and  by  itself does  not give power to the State Government to declare  the

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village.   It  states  that village means  "any  local  area recorded as a village in the revenue records of the district in  which it is situate and includes any am which the  State Government  may by general or special order declare to be  a village  for the purposes of the Act.  The said  section  is therefore in two parts.  By the first 273 part, it adopts the villages recorded in the revenue records of  the districts as villages for the purposes of  the  Act. By the second part, it accepts as village any area which the State Government may for the purposes of the Act declare  as such  village.  There is no separate provision giving  power to  the State Government to declare any area as village  for the purposes of the Act.  The legislature, probably  rightly thought  that since the power given to the State  Government by  Section 3 to establish a gram sabha and by Section  11-F to declare the panchayat area comprise in them the power  to declare the village within the meaning of Section 2 [t]  and particularly of the second part of it, it was not  necessary to  make  an  independent  provision  to  enable  the  State Government  to declare the village for the purposes  of  the Act.  It cannot be said that this view of the State  Govern- ment  is  wrong for it is not possible to establish  a  gram sabha  or declare the panchayat area unless the village  for which such gram sabha is to be established and its area  are first  determined.  The notification which is issued on  4th August,  1994  further shows that the gram  sabha  which  is inappropriately tided as gram panchayats are established for villages  within the meaning of Section 2 [t] and they  com- prise  the  area either of one revenue village  or  of  more revenue   villages  than  one.   Although,  therefore,   the criticism  by  the  High  Court  with  regard  to  both  the notifications  dated  9th  May, 1994 and  4th  August,  1994 delegating  the  power,  and establishing  gram  sabhas  and declaring  panchayat areas may be justified in that they  do not  refer to Section 2 [t] and the latter notification  has given  inappropriate  tides  in columns  2  and  3  thereof, according  to  us, for the reasons stated  above,  the  said defects  do not in any way affect the legality of  the  said notifications.   All that can be said in that connection  is that  they could have been correctly and adequately  worded. However, in construing legal documents, it is not their form but   their   substance   which  has  to   be   taken   into consideration.   Thus construed we are more than  satisfied, that  the  two notifications are in  substantial  compliance with  the provisions of the Act and have to be construed  as such. 41.We  also find no merit in the contention that  the  first part  of  Section 2 [t] which defines village  to  mean  any local  area recorded as a village in the revenue records  of the  district  in which it is situate, goes counter  to  the provisions of Article 243 [g] in that it forecloses the  au- thority  of  the  Governor to specify the  village  for  the purposes  of establishing a gram panchayat as  envisaged  by Part  IX  of the Constitution.  The  argument  ignores  that whereas  the  Constitution permits the Governor  to  specify village  by  a notification, it does not prevent  the  State from  enacting  a  law  for the  purpose.   As  pointed  out earlier, the notification issued by the Governor is in  fact a notification issued by the State Government.  An enactment of  the  legislature  is certainly a higher  form  of  legal instrument  than a notification.  What is further,  the  Act has received the assent of the Governor on 22nd April, 1994. Hence, there is not only no conflict between the  provisions of  Sections 2 [t] of the Act and those of Article  243  [S]

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but  there is an over-compliance with the provisions of  the Constitution. 42.The High Court has also held that there is a  substantial difference between the definition of ’gram sabha’ in Article 243 [b] of the Constitution and in Section 2 [g] of the  Act and, therefore the 274 latter  definition  is  ultra vires the  provisions  of  the Constitution.   Frankly, we have been unable  to  understand the  reasoning of the High Court in that behalf Article  243 [b] of the Constitution defines ’gram sabha’ to mean "a body consisting  of  persons registered in  the  electoral  rolls relating to a village comprised within the area of panchayat at  the  village  level" whereas Section 2 [g]  of  the  Act defines  ’gram  sabha’ to means "a  body  established  under Section 3 of the Act consisting of persons registered in the electoral  rolls  relating to village comprised  within  the area  of  a  gram  panchayat".  The  High  Court  has  taken exception to the word ’established’ in Section 2 [g] of  the Act.  It must be remembered in this connection that there is no provision in Part IX of the Constitution such as  Section 3 of the Act for establishing a gram sabha for a village  or a group of villages by such name as may be specified, and to name  the gram sabha in the name of the village  having  the largest population when the gram sabha is established for  a group of villages.  One may have quarrel with the use of the expression ’established’ in this connection.  For it is true to say that gram sabha is nothing but the electorate of  the village  or  villages comprised within the area  of  a  gram panchayat  and  in  that  sense  there  is  nothing  to   be established  as far as gram sabha is concerned.  What is  to be  established is the panchayat for a particular  area  and for the electorate constituted in that area.  The moment the panchayat  area is declared the electorate comprised  in  it gets  automatically constituted into the gram sabha.  It  no longer   remains   merely  an  electorate.    Whether   such constitution  is called establishment is immaterial.   Thes‘ are  matters of description.  Having followed  a  particular pattern,   the   legislature   has   used   the   expression ’established’  also in connection with the gram sabha  along with the panchayat.  We, however, do not see how the use  of the  said expression makes any difference to the  intendment of  the  said  provision and how  the  said  provision  goes counter  to the provisions of the Constitution.  Surely,  it is not suggested that the grain sabha that the Act seeks  to establish  does not consist of the entire electorate in  the panchayat  area  or  excludes  some  of  it.   So  long  as, therefore,  the  definition given in Section 2 [g]  and  the provisions of Section 3 of the Act do not in any way detract from the provisions of Article 243 [b] or their  intendment, they  cannot  be  held ultra vires  the  provisions  of  the Constitution.   We are, therefore, unable to agree with  the finding of the High Court in that respect. 43.  The  High Court has also held that  the  provisions  of Section  3 of the Act which empower the State Government  to establish  a gram sabha for a group of villages by the  name of the village having the largest population would result in the loss of identity of the village or villages with smaller population comprised in the gram sabha.  The High Court  has committed  an obvious error here in that it  has  identified the  village with the gram sabha and the village  panchayat. When villages are united to form a gram sabha and a  village panchayat,  they  do  not lose their name  and  identity  as separate villages.  They come together only for the  purpose of  running the gram panchayat.  In that process,  they  may

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also stand to gain inasmuch as they may have access to  more resources, and the benefit from bigger schemes and  projects and  availability of better infrastructure and equipment  to implement the projects and schemes.  It is 275 not,  therefore, possible to agree with the High Court  that the  identity of the smaller villages is lost  because  they are grouped together for establishing a common gram sabha or gram panchayat. 44.The  High  Court  has also  declared  the  provisions  of section  2 [11] read with those of Section 11-F ultra  vires the provisions of Article 243 [e], because according to  the High Court, the provisions of the said Article require  that at first, a territorial area should be carved out to make it the  panchayat  area  and then the population  of  the  area should  be  adjusted  so  as  to  ensure  uniform  ratio  of representation  as required by Article 243-C.  Instead,  the provisions  of  Sections  2  [11] and  11-F  carve  out  the panchayat  area  on the basis of population  alone  and  the basis  for it is conspicuous by its absence in the  Act  and this  has created confusion.  The representation of an  area has to be balanced to the ratio of the population in it  and not the population to the area.  Territorial  constituencies are sub-divisions of a panchayat area.  A densely  populated area will automatically contain more seats while a  sparsely populated  area will contain lesser seats than  the  densely populated area and hence the provisions of the Act are ultra vires  the  Constitution.  We are unable to  appreciate  the reasoning  of  the  High Court.   Article  243  [e]  defines ’panchayat  area’ to mean "territorial area of a  panchayat" and Article 243-C speaks about the composition of panchayats and  leaves  it  to  the legislature  of  a  State  to  make provisions with respect to it.  The only conditions that the latter  Article imposes on the composition of  panchayat  is firstly the ratio between the population of the  territorial area  of the panchayat at any level and the number of  seats in  the panchayat to be filled by election shall, as far  as practicable,  be the same throughout the  State.   Secondly, the  seats  in  the panchayat have to be  filled  by  direct election from the territorial constituencies in a  panchayat area  and  for  this purpose the panchayat area  has  to  be divided  into  territorial constituencies in such  a  manner that  the ratio between the population of each  constituency and  the  number  of seats allotted to it  have  as  far  as practicable  to be the same throughout the  panchayat  area. So   long  as  these  conditions  are  complied  with,   the composition  of  the panchayat that may be  evolved  by  the State  legislature  cannot be faulted.  We do  not  see  any material  before us to suggest that these two  criteria  are breached  or arc sought to be breached.  On the other  hand, section 11-F of the Act has made three provisions to conform to  the norms laid down by the said Article, viz.,  [i]  the panchayat area would be such that as far as practicable,  it will  have a population of 1000 throughout the  state;  [ii] for the purpose of the declaration of the panchayat area  no revenue or any hamlet thereof shall be divided and [iii], in the  hill districts which are sparsely populated and  spread over a vast terrain, an area within a radius of 5 kms.  from the  centre  of  the  village  should  be  declared  as  the panchayat  area though the population comprised in the  area may  be less than 1000.  When Article 243 [e]  defines,  the "panchayat area" to mean the territorial area of  panchayat, it does not require that the panchayat should be constituted on  the  basis of the area alone.  The High Court  has  read otherwise in the said definition and has, therefore,  fallen

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in an obvious error.  When the panchayat area is  determined on  the  basis of population inhabiting a  particular  area, that  area will also be a panchayat area within the  meaning of the said Article.  The provisions of the 276 Act,  viz., Section 2 [1] read with Section 11-F do no  more than  give  effect to the definition of  panchayat  area  in Article  243 [e].  When the area includes the whole  of  the village  or a group of whole villages including the  hamlets thereof, keeping in view the uniform norm of the  population of  1000  as  far as practicable, the  panchayat  area  gets automatically  demarcated  by the areas of  the  village  or villages comprised therein. 45.It  is  for the Government to decide in what  manner  the panchayat  areas  and the constituencies in  each  panchayat area will be delimited.  It is not for the court to  dictate the manner in which the same would be done.  So long as  the panchayat  areas  and the constituencies  are  delimited  in conformity  with  the constitutional provisions  or  without committing  a  breach thereof, the courts  cannot  interfere with  the  same.   We may, in this connection,  refer  to  a decision  of this Court in The Hingir-Rampur Coal  Co,  Ltd. and  Others v. The State of Orissa and Others [(1961) 2  SCR 537].   In this case, the petitionermine owners,  had  among others, challenged the method prescribed by the  legislature for  recovering  the  cess under  the  Orissa  Mining  Areas Development  Fund  Act, 1952 on the ground that it  was  un- constitutional.   The  majority of the Bench held  that  the method is a matter of convenience and, though relevant,  has to  be tested in the light of other relevant  circumstances. It  is not permissible to challenge the vires of  a  statute solely  on  the  ground  that the  method  adopted  for  the recovery of the impost can and generally is adopted in levy- ing a duty of excise. 46.What  is more objectionable in the approach of  the  High Court  is that although clause (a) of Article 243-0  of  the Constitution enacts a bar on the interference by the  courts in  electoral  matters  including  the  questioning  of  the validity  of  any law relating to the  delimitation  of  the constituencies   or   the  allotment  of   seats   to   such constituencies  made or purported to be made  under  Article 243-K and the election to any panchayat, the High Court  has gone  into the question of the validity of the  delimitation of  the  constituencies and also the allotment of  seats  to them.   We may, in this connection, refer to a  decision  of this  Court in Meghraj Kothari v. Delimitation Commission  & Ors.  [(1967) 1 SCR 400].  In that case, a  notification  of the Delimitation Commission whereby a city which had been  a general  constituency  was  notified  as  reserved  for  the Scheduled  Castes.  This was challenged on the  ground  that the petitioner had a right to be a candidate for  Parliament from the said constituency which had been taken away.   This Court held that the impugned notification was a law relating to  the delimitation of the constituencies or the  allotment of  seats to such constituencies made under Article  327  of the Constitution, and that an examination of sections 8  and 9 of the Delimitation Commission Act showed that the matters therein  dealt with were not subject to the scrutiny of  any court  of  law.   There was a very good reason  for  such  a provision because if the orders made under sections 8 and  9 were  not to be treated as final, the result would  be  that any  voter,  if  he so wished, could  hold  up  an  election indefinitely   by  questioning  the  delimitation   of   the constituencies from court to court.  Although an order under Section  8  or  9 of the  Delimitation  Commission  Act  and

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published under Section 10 [1] of that Act is not part of an Act of Parliament, its effect is the same.  Section 277 10  [4] of that Act puts such an order in the same  position as  a law made by the Parliament itself which could only  be made  by it under Article 327.  If we read  Articles  243-C, 243-K and 243-0 in place o Article 327 and sections 2  [kk], 11-F  and 12-BB of the Act in place of Sections 8 and  9  of the Delimitation Act, 1950, it will be obvious that  neither the  delimitation  of  the panchayat area nor  of  the  con- stituencies in the said areas and the allotments of seats to the  constituencies could have been challenged or the  Court could  have entertained such challenge except on the  ground that before the delimitation, no objections were invited and no  hearing was given.  Even this challenge could  not  have been  entertained  after the notification  for  holding  the elections  was issued.  The High Court not only  entertained the  challenge  but  has also gone into the  merits  of  the alleged grievances although the challenge was made after the notification  for  the election was issued on  31st  August, 1994. 47.While  supporting  the judgment of the  High  Court,  the respondents  raised some additional contentions.  The  first contention  was  that  it was not competent  for  the  State Government  under  Section 96-A of the Act to  delegate  its power to the Director, the delegation being in contravention of  the provisions of Article 243 [g] of  the  Constitution. We  have  pointed out earlier that under  the  Constitution, Governor  means  the  State  Government.   Article  154  [1] enables the Governor to exercise the executive power of  the State either directly or through officers subordinate to him in  accordance  with the Constitution.  Hence by  virtue  of Article  163,  the State Government can exercise  the  power through its officers.  Neither Article 243 [g] nor any other provision  in  Part  IX of  the  Constitution  prevents  the Governor   and,   therefore,  the  State   Government   from delegating  its  power  mentioned in the said  Part  to  any subordinate officer.  The Act makes a specific provision  by Section 96A thereof for the State Government to delegate all or  any  of  its  powers under the Act  to  any  officer  or authority  subordinate to it subject to such conditions  and restrictions  as  it  may deem fit  to  impose.   The  State Government  by a notification issued on 9th May, 1994  under Section 96-A delegated its powers under Sections 3 and  11-F of  the  Act to the Director.  We have already  pointed  out that  the power delegated under Sections 3 and 11-F  of  the Act  would impliedly include the power to declare  "village" under Section 2 [t] of the Act although the said section  is not mentioned in the notification specifically.  Hence we do not see any substance in this contention either. 48.A part of the aforesaid contention was that the  Director by his Circular dated 12th May, 1994 had delegated the func- tion  of  delimiting  the panchayat areas  to  the  District Magistrates  of  various districts which he could  not  have done  since Section 96-A does not permit  sub-delegation  of the  powers  given by the State Government.  We  are  afraid that this contention results from the incorrect appreciation of the contents of the said Circular.  By the said Circular, the  Director had only asked the District Magistrates to  do the  ministerial  work of submitting the proposals  for  re- organisation of grain panchayats according to the guidelines given in the Circular which were in terms of the  provisions of the Act.  Those proposals were to be finally processed by die   Director  himself  and  that  is  what  the   Director ultimately did as

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278 he  himself  took  the final decision  with  regard  to  the reorganisation  of the existing gram panchayats  constituted under  the unamended Act and delimited the panchayat  areas. In the circumstances, there is no merit in the contention. 49.   The  second  contention  raised  on  behalf   of   the respondents was that the delimitation of the panchayat areas and   gram   sabhas  was  done   without   giving   adequate opportunities  of  being heard to the people  in  the  areas concerned.  The lists of gram panchayats were published from 20th  to  26th August, 1994 and objections  were  heard  and disposed  of  on 27th and 28th August, 1994  and  the  final lists of the panchayat areas and gram sabhas were  published on the 31 st August, 1994.  While it was conceded on  behalf of  the State Government that the proposals  for  delimiting the  panchayat areas were published and finalised as  above, it  was pointed out on their behalf that this was done  bona fide  to  complete  the elections on time  and  without  any ulterior  motive,  since  the State  Government  was  racing against time to meet the deadline set by the Centre to  con- stitute the new panchayats.  However, during the hearing  of the  writ  petitions  before  the  High  Court,  the   State Government had in its counter-affidavit voluntarily  offered to  remove  the said grievances and  invite  the  objections afresh and finalise the delimitation of the panchayat areas. However,  no order was passed on the said offer by the  High Court.   Subsequently,  the  State Government  on  it,;  own cancelled  the notification of election dated  31st  August, 1994  to meet the said grievances of the  writ  petitioners, i.e.,  the  respondents  herein.  However, in  view  of  the letter  dated 12th November, 1994 received from the  Centre, to  which we have already made a reference,  threatening  to stop  the  release of funds, the State Government  was  com- pelled  to renotify the elections on 26th November, 1994  in pursuance  of which the election process was to commence  on 3rd December, 1994.  In the meanwhile, on 2nd December, 1994 the impugned judgment was delivered by the High Court. 50.  Before us, again, in order to prove its bonafides,  the State Government voluntarily offered to hear the respondents with  regard  to their grievances and for  that  purpose  to cancel  the  notification  dated  26th  November,  1994  and reschedule  the election process without prejudice to  their contentions  in the appeal.  By our interim order dated  9th February, 1995, we permitted the State Government to  cancel its  notification  dated 26th November, 1994,  to  hear  the respondents  with  regard to their said  grievances  and  to reschedule   the  election  process.   That  order  of   9th February, 1995 is reproduced below:               "Pending the decision, we direct as follows:               The  Governor  may  adopt  the   Notifications               issued by the Director of Panchayat Raj  under               Section 3 read with Section 11-F of the  Uttar               Pradesh Panchayat Raj Act, 1947 [Act]  between               2nd and 5th August, 1994 as his own  proposals               for  the  purpose of specifying  villages  and               constituting  Gram Sabha and  Panchayat  areas               under the Act.  The Governor may thereafter or               simultaneously  issue a fresh notice  inviting               objections to the said proposals. He will give               at  least  10  days’ clear  time  for  lodging               objections.  He may also nominate officers  to               hear   the   said   objections.    After   the               objections are disposed of final  Notification               or   Notifications  will  be  issued  by   the               Governor.

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             279               The   notice  inviting  objections   must   be               prominently displayed at least in the  offices               of   all   the  Block   Development   Officers               throughout  the  period fixed for  filing  the               objections.   In addition, wide  publicity  to               such notice should be given on T.V., Radio and               in  Newspapers having wide circulation in  the               areas concerned.               It would not be necessary to give oral hearing               to  the objector unless the officer  concerned               considers it necessary to do so.               After the final Notification/s is/are  issued,               the  State Election Commissioner  may  proceed               with the conduct of the elections.  " 51.We  understand that the grievances of the people  in  the areas  have since been heard and the process of election  is underway according to the revised schedule. 52.The  above  order was passed as  stated  earlier  without prejudice  to the contentions of the State  Government  that the  notifications  issued by the Director under  Section  3 read  with  Section  11-F of the Act  between  2nd  and  5th August,  1994 were valid.  We have already held  that  since the  Governor  means the State Government,  the  Legislature could empower the State Government to delegate all or any of its  powers  under  the  Act to  any  officer  or  authority subordinate to it.  This is what the legislature has done by enacting  Section 96A and the State Government in  pursuance of the provisions of the said Section, delegated its  powers to  the Director.  We have held that both the  provision  of Section 96A and the delegation made by the State  Government to  the Director under the said provision is valid.   Hence, the  notifications  in question issued by the  Director  are valid.   The adoption by the Governor, of the  notifications issued by the Director pursuant to our interim order of  9th February, 1995 has, therefore, to be deemed to be by way  of abundant precaution, pending the decision on the contentions raised  on  behalf of the respondents.  The actions  of  the Governor  pursuant  to our interim order, therefore,  in  no away reflect adversely on the validity of the  notifications issued by the Director. 53.We must also make it clear that we had passed the interim order,  as stated earlier, pending the decision and  without prejudice  to the contentions of the State  Government  that the election process once started could not be set at naught by raising objections on the ground that the delimitation of the panchayat areas was defective.  We have pointed out that the original delimitation of the panchayat areas having been made much prior to the election notification of 31st August, 1994,   the  respondent-writ  petitioners  could  not   have challenged  the  same after the said  notification  and  the Court could not have entertained the challenge.  There  was, therefore,  no invalidity in the action taken by  the  State Government  by  its  notification of 31st  August,  1994  to commence  the election process.  We are, in  these  proceed- ings,  referring  to the lacuna in the steps  taken  by  the State Government to finalise the panchayat areas only with a view  to  point  out that it was  obligatory  on  the  State Government to hear the objections before the panchayat areas were finalised.  The ratio of the decisions of this Court in Visakhapatnam  Municipality  V. Kandregula Nukaraju  &  Ors. [(1976) 1 SCR 545], S-L.  Kapoor v. Jagmohan & Ors.  [(1980) 3 SCC 379], Baldev Singh & Ors. v. State of Himachal Pradesh & Ors. [(1987) 2 SCC 510], Sundarjas Kanyalal 280

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Bhatija  &  Ors.  v. Collector, Thane,  Maharashtra  &  Ors. [(1989) 3 SCC 396], and Atlas Cycle Industries Ltd. v. State of  Haryana & Ors. [(1993) Supp. 2 SCC 278] requires that  a reasonable  opportunity  for  raising  the  objections   and hearing  them  ought to be given in such matters  since  the change  in  the areas of the local bodies results  in  civil consequences.  It was not disputed before us that the action of bringing more villages than one under one gram  panchayat when they were earlier under separate gram panchayats,  does involve   civil   consequences.    However,   as   held   in Visakhapatnam Municipality, S.L. Kapoor, Baldev Singh, S. L. Bhatija and Atkas Cycles cases, in matters which are  urgent even a post-decisional hearing is a sufficient compliance of the  principle  of  natural  justice,  viz.,  audi   alteram pattern.   It  is in view of this position in law  that  the State  Government had offered to hear the grievances of  the writ petitioners before the High Court and before us. 54.We are, therefore, more than satisfied that there were no mala fide intentions on the part of the State Government  in giving the short time for submitting the objections and  for hearing  and  disposing them of.  We may, however,  make  it clew that although, as pointed out earlier, the challenge to the delimitation of the panchayat areas on the said  grounds could  not  have  been made in the present  case  after  the election  notification  was  issued,  the  State  Government should bear it in mind that if and when the next  regrouping of  the villages and redetermination of the panchayat  areas is undertaken, the authorities will have to give  sufficient opportunity to the people of the areas concerned for raising the  objections.   This  is  with a  view  to  remove  their grievances,  if  any,  with  regard  to  the   difficulties, inconveniences  and  hardships,  likely  neglect  of   their interests,  domination  of  certain  sections  and   forces, remoteness  of  the seat of administration, want  of  proper transport and communication facilities etc.  The opportunity will also provide an occasion for the people to come forward with  suggestions  for better and more viable,  compact  and cohesive   regrouping   of  the   villages   for   efficient administration and economic development.  The objections are not to be invited to enable the people to exercise the  sort of a right of self-determination which is sought to be spelt out  by the High Court.  The final decision with  regard  to the  delimitation  of  the panchayat  ,  after  hearing  the objections and suggestions, will, of course, be that of  the State Government acting through the Director. 55.The  last contention of the respondents was that the  Act makes provision for the nyaya panchayats whereas the amended provisions   of   the  Constitution  do   not   direct   the Organisation  of such panchayats and, therefore, the Act  is ultra vires the Constitution.  The contention is only to  be stated  to  be  rejected.   Admittedly  the  basis  of   the organisation  of  the  nyaya panchayats  under  the  Act  is different  from  the basis of the Organisation of  the  gram panchayats  and the functions of the two also  differ.   The nyaya  panchayats  arc in addition to the  gram  panchayats. The  Constitution  does not prohibit  the  establishment  of nyaya  panchayats.  On the other hand, the  Organisation  of the  nyaya panchayats will be in promotion of the  directive principles contained in Article 39A of the Constitution.  It is therefore, difficult to appreciate this contention.  56. As pointed out above, the decision 281 of  the  High Court suffers from errors and has  to  be  set aside.   The  appeals,  therefore, succeed  and  are  hereby allowed  and the impugned decision of the High Court is  set

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aside with costs throughout. 283