Holding

The provisions of the Uttar Pradesh Panchayat Raj Act, including the definitions of village, Gram Sabha and panchayat area, and the delegation of powers under Section 96‑A, are constitutionally valid and not ultra vires the Constitution, and courts cannot interfere with the delimitation of panchayat areas after the election notification.

Summary

The Supreme Court examined the constitutionality of several provisions of the Uttar Pradesh Panchayat Raj Act, 1947 (as amended in 1994) after the State of U.P. and others challenged the High Court's finding that definitions of 'village', 'Gram Sabha' and 'panchayat area' were ultra vires Articles 243(g), 243(b) and 243(e) of the Constitution. The Court held that Article 243(g) merely empowers the Governor – acting as the State Government – to specify villages, and that Section 2(t) merely defines village and does not conflict with the Constitution. Similarly, the definition of Gram Sabha in Section 2(g) and the method of delimiting panchayat areas under Section 2(11) read with Section 11‑F were found to be consistent with Articles 243(b) and 243(e). The delegation of powers under Section 96‑A to the Director was upheld, and the Court ruled that challenges to the delimitation of panchayat areas after election notification are barred by Article 243‑O. Consequently, the High Court’s decision was set aside and the State’s appeal allowed.

Issues considered

Whether Section 2(t) of the U.P. Panchayat Raj Act defining 'village' is ultra vires Article 243(g) of the Constitution
Whether the power to specify a village rests with the Governor or the State Government
Whether Section 2(g) defining 'Gram Sabha' is ultra vires Article 243(b)
Whether establishing a Gram Sabha for a group of villages defeats the identity of smaller villages
Whether Section 2(11) read with Section 11‑F defining 'panchayat area' is ultra vires Article 243(e)
Whether delegation of powers under Section 96‑A to the Director is constitutionally permissible
Whether courts can entertain challenges to the delimitation of panchayat areas and seat allocation after election notification
Whether the provision for Nyaya Panchayats is ultra vires the Constitution

Legislation cited

Constitution of Indias. Article 154, s. Article 163, s. Article 166, s. Article 243(b), s. Article 243(c), s. Article 243(e), s. Article 243(g), s. Article 243(k), s. Article 243(o), s. Article 40
Constitution (Seventy‑third Amendment) Act, 1992
General Clauses Act, 1873s. 3(29), s. 3(60)(c)
Uttar Pradesh Panchayat Raj Act, 1947s. 11-F, s. 2(11), s. 2(g), s. 2(t), s. 3, s. 96-A
Uttar Pradesh Panchayat Raj (Amendment) Act, 1994

Subjects

village definitionGram Sabhapanchayat areaArticle 243delegation of powerdelimitation of constituencieslocal self‑governmentUttar Pradesh Panchayat Raj Actconstitutional validity

Judgment

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

MARCH 24, 1995

[P.B. SAWANT AND S.C. AGRAWAL., JJ.) B

Constitution of India-Arts.40 and 243 (g)-Village-Definition of-
Governor can declare any populated rnral area as a village-It does not stick
to any particular concept or any pre-conceived notion of village.

Constitution of India-Art.243(g)-U.P. Panchayat Raj Act, 1947-Sec-
c
tion 2(t)-Villag~oncept o~Villages recorded in revenue records--l'ower
of declaring village with State Government-Whether section 2(t) is violative
of Art 243(g)-Held, No-Constitution equates Governor with State Govern-
ment-Notification issued by Government or a general or special order issued
by State Government-Constitutionally both are acts of Governot-Notifica- D
tions dated 9-5-1994 and 4-8-1994-Legality of.

Constitution of India-Art.243(b )-U.P. Panchayat Raj Act, 1947-Sec-
tion 2(g)-Gram Sabha-Definition-Whether definition given in section 2(g)
is ultra vires provisions of Constitution-Held, No.
E
U.P. Panchayat Raj Act, 1947-Section 3--Establishment of a gram
sabha for a group of village~Whether results in loss of identity of village with
smaller population-Held, No.

Constitution of India-Article 243(e)-U.P. Panchayat Raj Act,
1947-Section 2(11) r/w s 11-F-Panchayat area-carving out panchayat area F
on basis of population-Whether provisions of section 2(11).r/w s 11-F are
ultra vires Art. 243(e)-Held, N~Art 243(e) does not require that panchayat
should be constituted on basis of territorial area alone.

Constitution of India-Articles 243-D, 243-K-Elet:toral matters-Bar G
on interference by court~Validity of d~limitation of panchayat area or of
initial area and allotment of seats to constituencieS-Challenged-Whether

t court could have entertained such challenge-Held, No-Even this challenge
could not have been entertained after issue of election notification.

Constitution of India-Articles 243(g), 154( I) and 163-U.P. H
1015
1016 SUPREME COURT REPORTS [1995] 2 S.C.Ri

A Panchayat Raj Act, 1947-Section 96-A-Delegation of power under the
Act-Wlzether Sec. 96-A is ultra vires Art.243(g)Held, No.

Constitution of lndia-A1t. l4-U.P. Panchayat Raj Act, 1947-Sections
3 and 11-F-Detennination of Panchayat areas and gram sabhas-Obligat01y
on State Government to hear objection before panchayat areas are
B finalised-Cliange in areas of local bodies results in civil co!isequenceS-Post
decisional hearing-Sufficient compliance in urgent matters.

U.P. Panchayat Raj Act, 1947-Nyaya Panchayats-Organisation
of-Act making provision for-Wliether ultra vires the Constitution-Held,
C No.

On coming into force on 24.4.1993 of the Constitution (Seventy-Third
Amendment) Act, 1992, which gives effect to one of the Directive Principles
of State Policy, viz., Article 40 of the Constitution of India whereby the
State is directed to organise village pancha)'ats as units of self-government,
D the States were required by the Centre to take steps to organise village
panchayats on the lines of the said Constitutional Amendment by making
a law or amending the existing law suitably. The Uttar Pradesh State
Legislature amended the U.P. Panchayat Raj Act, 1947 by enacting the U.P.
Panchayat Raj (Amendment) Act, 1994. As per the provisions of the Act,
several Government instructions and notifications were issued and rules
E
. were framed with a view to hold elections to the panchayats. The declara-
tion of the gram panchayat areas u/s H-F and the establishment of the
gram sabhas u/s 3 were made. The elections to the new panchayats were
then notified. In pursuance of this notification the election process was to
commence on 29.9.1994.
F
The respondents fil~d writ petitions in the Allahabad High Court
alleging that the Government orders were being violated in the process of
re-organization and delimitation of the constituencies. Writ petitioners
also challenged the validity of the Constitutional Amendment as well as
the vires of the Panchayat Raj Act. The State Government renotified the
G
dates of election.

The High Court held that the definitions of 'village' u/s 2(t), of
'Gram Sabha' u/s 2(g), and of 'Panchayat Area' u/s 2(11) r/w s 11-F of the
Act were ultra vires the respective definitions given in Articles 243(g),
H 243(b), and 243(e) r/w Article 243-C of the Constitution. The High Court
J
STATE v. P.S.K. SAMIT! 1017

further held that the village had to be a habitat according to the A
anthropological concept; that the village for the purposes of the Panchayat
could be specified only in accordance with the wishes of the inhabitants of
the village as conveyed to the Governor who was obliged to notify it without
involvement of the State Government; that the Governor had to act inde-
pendently of the State Government in the matter of specification of the
'village' and further the village will have to be fixed according to the
B
aspirations, chauvinism and the wishes of the villagers. As regards the
'Gram Sabha', the Court held that although the definition of Gram Sabha
referred to a body of persons registered in the electoral rolls, the references
'r to 'establishment u/s 3' and the provision for establishment and notifica-
tion of Gram Sabha in section 3, were ultra vires the Constitution and that C
the State Government had no power to establish or notify Gram Sabha.

Allowing the appeals the Court

HELD : 1.1. Article 40 of the Constitution does not define 'village' as D
such. It only refers to the organisation of 'village panchayats' as units of
self-government. Article 243 (g) of the Constitution defines 'village' to mean
a village specified by the Governor by public notification to be a village for
the purposes of the said part and includes a group of villages so specified.
This definition of'village' on the one hand, does not stick to any particular,
much less the vintage concept of village that the High Court had in mind, E
viz., the anthoropologically evolved and sociologically identifiable habitat
and on the other, it gives the Governor power to specify a village as he may
deem fit. The village so specified by him may include a group of villages.
The Constitution permits the Governor to declare any populated rural
area as a village. The village which the Governor has to specify is a village F
W- for the purpose of carrying out the provisions of Part IX of the Constitu-
., tion and not for any other purpose. Hence to bring in any particular
concept of village and to read into the said Article any pre-conceived notion
,.,.-.... of village is unwarranted by law. [1030-E-G]

1.2 There cannot be any immutable social, political, economic or G
organisational concept of village as a self- governing unit. In a developing
country like ours, where the population is growing fast, where the society
is in ferment on all fronts, where divisive forces of all kinds abound, where
the vast majority of population is illiterate and is the victim of ignorance,
superstition, blind - faith, bilases and prejudices, and is shackled by H
1018 SUPREME COURT REPORTS [1995) 2 S.C.R.

A tradition, and irrational customs and practices, there is an urgent need to
evolve means to unite and integrate the society, to expose the populace to
larger and higher goals, to imbibe in them the wider perspectives and to
forge a socially cohesive front for breaking the barriers of race, caste, class,
religion and region rather than to pander to the age-old, self-centered
B physical and mental barriers. Article 40 not only does not define "village"
but also does not require that the village panchayats should be organised
on the basis of any particular concept of village much less the vintage
concept which appears to have appealed to the High Court. [1043-C-E]

1.3. If separate identities, chauvinism, divisible sentiments and feel-
C ings are nurtured from the grassroot level, they are bound to erode the
foundation of the unit and integrity of the country and should be the last
thing on the social and political agenda of the country. On the other hand,
the need of the day is to create social, political and economic entities
crossing all barriers and wedded to the nationhood as the ultimate goal.
D Anthropological and sociological entities may be natural so far as the blood
and familial relationships and attachments go and have their place in
certain limited spheres. But they have no place while shaping democratic
political and administrative units. Nor are they conducive to social and
economic progress. On the other hand, they often prove insurmountable
blockades to promoting the ideals enshrined in the Preamble of the Con-
E 'stitution. Sometimes, smaller the social, political and administrative en-
tities, the greater the dominance of one section on the other and deeper the
prejudices. The need is to organise viable social, political, economic and
administrative units of optimum size at the lowest level on a rational basis
keeping in mind the size of the population, the needs of social and economic
F development, availability of resources, the transport and communication
facilities, convenience of administration and other relevant factors. Over~
the years, not only the population in the rural areas has grown enormously .......
but the complexion of the rural areas has also undergone a change. With the
increasing pressure on land, there has been a steady migration from the
rural to the urban and semi-urban areas. Some villages are almost deserted
G while others survive much below the poverty line. At the same time, some
have emerged as small pockets of comparative prosperity, thanks to mar-
ginal industrial and commercial activities around them and the nearness to
the urban and semi-urban areas. There is further a limit to the number of
village panchayats which may be constituted with all the overhead expenses
H involved in the exercise which must have a rational relatio~ to the result
f-
l

STATE 1•_ P.S.K. SAMIT! 1019
sought to be achieved. In the State ofU.P., there are 1,20,000 villages. Before A
the present exercise of constituting the village panchayats under the Act,
there were 74,000 gram sabha!i which are now reduced to 55,000. With the
nature and range of functions enstrusted to the new village panchayats
ur ;1er the Act, and the expenditure that may have to be incurred in con-
stituting and running them, it can hardly be said that their number, struc-
B
ture and organisation militate in any way against the concept of democracy
and the principle of self-governance. Section 11-F(l) by laying down for
non-hilly areas a norm of a village panchayat for every 1000 population as
far as practicable and for hilly areas, for every 5 kilometers radius-distance,
has in fact tried to observe the principle of self-governance as closely as
possible. [1043-H, 1044-A-H, 1045-A-C] c
1.4 Article 243 (g) of the Constitution defines village to mean "a village
specified by the Governor to be a village and includes a group of villages so
specified". In other words, according to this definition, any existing village
or a group of the existing villages may be specified by the Governor as a D
village for the purposes of organising a village panchayat. The definition
begs the question as to what is a village which the Governor can specify as a
village for the purposes of constituting the "village panchayat". It is not
disputed that almost all villages in the State have been recorded in the
revenue records of the respective districts in which they are situated. No
material had been placed on record to show that villages had been recorded E
as such in any other record. There might be some villages and new settle-
ment which were not so recorded There was, therefore, nothing wrong if the
Governor specifies the revenue villages as villages and in addition also
those villages and settlements- which are not so recorded in the revenue
records as villages for the purpose of constituting village panchayats. The p
"revenue village" is, therefore, a documented ready-made concept of village
and the Governor while acting under Article 243(g) for specifying the village
may adopt the same as village. No restriction has been placed by Article
243(g) on the Governor for accepting the revenue village as a village for the
purposes of constituting village panchayat. In fact, the Governor has been
empowered by the said constitutional provision to declare even a group of G
villages as a village. If this is so, it is not possible to appreciate as to why the
definition of village in Section 2(t) will fall foul of the provisions of Article
243(g). Section 2(t) not only speaks of villages recorded in the revenue
records as such but also includes in the definition, any area which the State
Government may by general or special order declare to be a village for the H
1020 SUPREME COURT REPORTS [1995) 2 S.C.R.

A purposes of the Act. The concept of village is not foreign either to the
Constitution or to the State legislation. [11145-G-H, 1046-A-EJ

1.5 If there i~ no restriction placed by the Constitution on the
1
Governor in accepting any inhabited rural area as a village, it is dillicult
t~~ appreciate how the Act is violative of the Constitution when the State
B Gover.nment declares any area including a revenue village as a village. In
any case, the Court cannot substitute its concept of village for that of the
State Government. [1046-G]

2.1 As regards the objection of the. High Court that whereas Article
C 243(g) requires the Governor to specify the village, the Act gives this power
to the State Government to do so, the High Court had faQed to notice the
provisions of the Constitution which equate the Governor with the State
Government in exercise of his functions except where he is by or under the
Constitution required to exercise the function in the direction. In this
connection, provisions of Article 163 of the Constitution state that there
D shall be a Council of Ministers with the Chief Minister at the head to aid
and advise the Governor in the exercise of his functions except when they
are to be exercised by him under the Constitution in his discretion. It is
also not disputed that when a Minister takes action, according to the rules
of business, it is both in substance and in form the action of the Governor.
Under the Constitution, therefore, while exercising the non-discretionary
E
functions, the Governor cannot act without the aid and advice of the
Council of Ministers. To do so will cut at the very root of the cabinet system
of Government we have adopted. [1046-H, 1047-A-C]

Samsher Singh v. State of Punjab, [1974] 2 SCC 831, referred to.
F
2.2 Admittedly, the function under Article 243(g) is to be exercised
by the Governor on the aid and advice of his Council of Ministers. Under
the rules of business made by the Governor under Article 166(3) of the
Constitution, it is in fact an act of the Minister concerned or of the Council
of Ministers as the case may be. When the Constitution itself thus equates
G the Governor with the State Government for the purposes of the relevant
function, the provision in section 2(t) which realistically gives the power
of declaring the village to the State Government, cannot be said to be
inconsistent with or contrary to Article 243(g). Further, Section 3(60)(c)
of the General Clauses Act, 1873 defines 'State Government' to mean
H Governor which definition is in conformity with the provisions of the
STATE v. P.S.K. SAMffi 1021
Constitution. The conclusion of t!!_e. High Court that Section 2(t) was ultra A
vires Article 243(g) of the 'Constitution was, therefore, not sustainable.
(1048-D-E]
2.3 Reasoning of the High Court that under the Act the State Govern-
ment could not declare the village by special or general order as required by
section 2(t) because Article 243(g) of the Constitution required the Gover- B
nor 'to specify the village by a public notification' was not sustainable.
Admittedly, the general or special order issued by the State Government is
always published in the official gazette. In any case, the order declaring the
villages for the purposes of section 2(t) in the present case was gazetted.
r There is a hierarchy of legal instruments such as law, ordinance, order, C
bye-law, rule, regulation and notification. It is recognised even by Article 13
(3)(a) of the Constitution and Section 3(29) of the General Clauses Act,
1897. All the orders, rules, regulations and notifications when made or
issued by the State Government are made or issued in the name of the
Governor by the functionary of the concerned Ministry named in the rules
of business as per the provisions of Article 166 of the Constitution. In view D
of the provisions of Article 154 and of Article 163 read with Article 166 of the
Constitution. 'Governor' means the Government of the State and all execu-
tive functions which are exercised by the Governor except where he is
required under the Constitution to exercise the functions in his discretion,
are exercised by him on the aid and advice of the Council of Ministers. E·
Hence, whether it is a notification issued by the Government or a general or
special order issued by the State Government, constitutionally both are the
acts of the Gove~nor. [1048-F-H, 1049-A-B]

2.4 In the present case, by the notification dated 9th May 1994 issued
under Section 96-A of the U.P. Panchayat Raj Act by the Governor, the F
r--Powers of the State Government under Section 3 and Section 11-F of the
T
Act were delegated to the Director, Panchayat Raj, U.P., Lucknow. Pur-
suant to this delegation, on 4th August, 1994 the Director issued notifica·
tion establishing gram sabhas u/s 3 and declaring Panchayat areas u/s
11-F of the Act. This was a composite notification both for establishing
gram sabhas and declaring panchayat areas. Neither in the notification G
dated 9th May, 1994 delegating powers u/ss 3 and 11-F to the Director nor
in the notification dated 4th August, 1994 establishing gram sabhas and
declaring the panchayat areas, there was a mention either of Section 2(t)
of the Act or of the power delegated to declare the viHage under the said
· provision. However, keeping in mind the scheme of the Act and the H
\
1022 SUPREME COURT REPORTS [1995] 2 S.C.R.

A provisions of Sections 2(t), 3 and 11-F, it is clear that Section 2(t) merely
defines 'village' and by itself does not give power to the State Government
to declare the village. It states that village in the revenue records of the {
district in which it is situate and includ-es any area which the State
Government may by general or special order declare to be a village for the
purposes of the Act. The said section is, therefore, in two parts. By the first
B part, it adopts the villages recorded in the revenue records of the districts
as villages for th~ purposes of the Act. By the second part, it accepts as
village any area which the State Government may for the purposes of the
Act declare as such village. There is no separate provision giving power to
the State Government to declare any area as village for the purposes or
c the Act. The legislature, probably rightly thought that since the power
given to the State Governn:ient by Section 3 to establish a gram sabha and
by Section 11-F to declare the panchayat area comprise in them the power
to declare the village within the meaning of Section 2(t) and particularly
of the second part of it, it was not necessary to make an independent
provision to enable the State Government to declare the village for the
D purposes of the Act. It could not be said that this view of the State
Government was wrong for it was not possible to establish a gram sabba
or declare the panchayat area unless the village for which such gram sabha
is to be established and its area are first determined. The notification·
which was issued on 4th August, 1994. further showed that the gram sabha
E _which was inappropriately titled as gram panchayats were established for
villages within the meaning of Section 2(t) and they comprised the area
either of one revenue village or of more revenue villages than one. Al·
though, therefore, the criticism by the High Court with regard to both the
notifications dated 9th May, 1994 and 4th August, 1994 delegating the
power, and establishing gram sabhas and declaring panchayat areas mi&ht
F be justified in that they did not refer to Section 2(t) and the latter
notification had given inappropriate titl~s in columns 2 and 3 thereof, the~"-
said defects did not in any way affect the legality of the said notifications.
All that could be said in that connection was that they could have been
_.l_
correctly and adequately worded. However, in construing legal documents,
it is not their form but their substance which has to be taken into
G. consideration. Thus construed, the two notifications were in substantial
compliance with the provisions of the act and had to be construed as such.
(1049-C-H, 1050-A·E]

2.S There was no merit in the contention that the first part of Section
H 2(t) which defines 'village' to mean any local area recorded as a village in
j
STATE v. P.S.K. SAMITI 10~3

the revenue records of the district in which it is situate, goes counter to A
the provisions of Article 243(g) in that it forecloses the authority of the
Governor to specify the village for the purposes of establishing a gram
panchayat as envisaged by Part IX of the Constitution. The argument
ignores that whereas the Constitution permits the Governor to specify
village by a notification, it does not prevent the State from .enacting a law
B
for the purpose. The notification issued by the Governor was in fact a
notification issued by the State Government. An enactment of the legisla-
ture is certainly a higher form of legal instrument than a notification.
Moreover, the Act has received the assent of the Governor on 22nd April,
1994. Hence, there is not only no conflict between the provisions of Section
2(t) of the Act and those of Article 243(g) but there is an over-compliance c
with the provisions of the Constitution. (1050-F-H]

3. 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 D
Section 2(g) of the Act defines 'gram sabha' to means "a body established
under Section 3 of the Act consisting of persons registered in the electoral
rolls relating to village comprised within the area of a gram panchayat".
The High Court had taken exception to the word 'established' in Section
2(g) of the Act. There is no provision in Part IX of the Constitution such
as Section 3 of the Act for establishing a gram sabha for a village or a E
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 F
._,, , .,......_-villages comprised within the area of a gram panchayat and in that sense
there is nothing to be established as for as gram sabha is concerned. What
is to be established is the panchayat for a particular area and for the
-->----. electorate constituted in that area. The moment the panchayat area is
declared the electorate comprised in it gets automatically constituted into
the gram sabha. It no longer remains merely an electorate. Whether such G
constitution is called establishment is immaterial. These are matters of
description. Having followed a particular pattern, the legislature has used
the expression 'established' also in connection with the gram sabha along
with the panchayat. There is no reason why the use of the said expression
makes any difference to the intendment of the said provision and how the H
1024 SUPREME COURT REPORTS [1995) 2 S.C.R.

A said provision goes counter to the provisi!lDS of the Constitution. Surely,
it is not suggested that the gram sabha that the Act seeks to establish does
not. consist of the entire electorate in the panchayat area or excludes some
{
of it. Therefore, so long as, the definition given in Section 2(g) and the
provisions of .Section 3 of the Act do not in any way detract from the
provisions of Article 243 (b) or their intendment, they cannot be held ultra
B
vires the provisions of the Constitution. (1051-C-H]

4. When villages are united to form a gram sabha and a village
panchayat, they do not lose their name and identity as separate villages.
They come together only for the purpose. of running the gram panchayat.
C In that process, they may also stand to gain inasmuch as they may have
access to more resources, and benefit from bigger schemes and projects
and availability of better infrastructure and equipment to implement the
projects and schemes. It was not, therefore, possible to agree with the High
. Court that the identify of the smaller villages is lost because they are
grouped together for establishing a common gram sabha or gram
D panchayat. (1052-C-D]

S.1Article243(e) defines 'panchayat area' to mean "territorial area \I -'(
of a panchayat" and Article 243-C speaks about the composition of
panchayats and leaves it to the legislature of a State to make provisions
E with respect to it. The only conditions that the .latter Article imposes on
the composition of panchayat is firstly, the ratio between the population
of the territorial area of the panchayat at any level and the number of seats
in the panchayat to be filled by election shall, as far as practicable, be the
same throughout the State. Secondly, the seats in the panchayat have to
p be filled by direct election from the territorial constituencies in. a
panchayat area and for this purpose the panchayat area has to be divided-~, ·,
into territorial constituencies in such a manner that the ratio between the
population of each constituency and the number of seats allotted to it have .~
as far a practicable to be the same .throughout the panchayat area. So long
as these conditions are complied with, the composition of the panchayat
G that may be evolved by the State legislature cannot be faulted. There was
no material suggesting that these two criteria were breached or were
sought to be breached. On the other hand, section 11-F of the Act has made ~
three provisions to conform to the norms laid down by the said Article,
viz. (i) the panchayat area would be such that as far as practicable, it will
H have a population of 1000 throughout the state; (ii) for the purpose of the
j
STATEv. P.S.K.SAMITI 1025

declaration of the panchayat area, no revenue village or any hamlet thereof A
shall be divided and (iii) in the hill districts which are sparsely populated
and spread over a vast terrain, an area within a radius of 5 kms. from the
centre of the village should be declared as the panchayat area, though the
population comprised in tI,e area may be less than 1000. When Article
243(e) defines, the "panchayat area" to mean the territorial area of B
panchayat, it does not require that the panchayat should be constituted on
the basis of the area alone. The High Court had read otherwise in the said
definition and had, therefore, fallen in an obvious error. When the
panchayat area is determined on the basis of population inhabiting a
particular area, that area will also be a panchayat area within the meaning
of the said Article. The provisions of the Act, viz., Section 2(11) read with C
Section 11-F do not more than give effect to the definition of panchayat
area in Article 243(e). When the area includes the whole of the village or
a group of whole villages including the hamlets thereof, keeping in view the
uniform norm of the population of 1000 as far a practicable, the panchayat
area gets automatically demarcated by the areas of the village or villages D
comprised therein. (1052-H, 1053-A-G]

5.2 It is for the Government to decide in what manner the panchayat
areas and the constituencies in each panchayat area will be delimited. It
is not for the court to dictate the manner in which the same would be done.
So long as the panchayat areas and the constituencies are delimited in E
conformity with the constitutional provisions or without committing a
breach thereof, the courts cannot interfere with the same. [1053-H, 1054-A]

The Hingi.r-Rampur Coal Co. Ltd. and Others v. The State of Orissa
and others, [1961) 2 SCR 537, referred to.
F
6. Neither the delimitation of the panchayat area nor of the con·
stituencies in the said areas and the allotments of seats to the constituen·
cies could have been challenged or the Court could have entertained such
challenge except on the ground that before the delimitation, no objections
were invited and no hearing was given. Even this challenge could not have G
been entertained after the notification for holding the elections was issued.
The High Court not only entertained the challenge but had also gone into
the merits of the alleged grievances although the challenge was made after
the notification for the election was issued. (1055-B-C]

Meghraj Kothari v. Delimitation Commission & Ors., (1967) 1 SCR H
\
1026 SUPREME COURT REPORTS (1995) 2 S.C.R.

A 400, relied on

7. Under the Constitution, Governor means the State Government.
Article 154(1) enables the Governor to exercise the executive power of the
State either directly or through officers subordinate to him i.n accordance
with the Constitution. Hence by virtue of Articles 163, the State Govern-
B ment can exercise the power through its officers. Neither Article 243 (g)
nor any other provision in Part IX of the Constitution prevents the
Governor and, therefore, the State Government from delegating its power
mentioned in the said Part to any subordinate officer. The Act makes a
specific provision by Section 96-A thereof for the State Government to
c delegate all or any of its powers under the Act to any ojicer or authority
subordinate to it subject to such conditions and restrictions as it may
deem fit to impose. The State Government by a notification issued on 9th
May, 1994 under Section 96-A delegated its powers under Sections 3 and
11-F of the Act to the Director. The power delegated under Sections 3 and
11-F of the Act would impliedly include the power to declare "village" under
D Section 2(t) of the Act although the said section is not mentioned in the
notification specifically. (1055-E-H]

8. The original delimitation of the panchayat areas having been made
much prior to the election notification of 31st August, 1994, the respon-
E dent-writ petitioners could not have challenged the same after the said
· notification and the Court could not have entertained the challenge. There
was, therefore, no invalidity in the action taken by the State Government
by its notification of 31st August, 1994 to commence the election process.
However, it was obligatory on the State Government to hear the objections
before the panchayat areas were finalised.)A reasonable opportunity for
F
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 consequen-
ces. The action of bringing more villages than one under one gram
panchayat when they were earlier under separate gram panchayats, does
involve civil consequences. However, in matters which are urgent even a
G post-decisional hearing· is a sufficient compliance of the principle of
natural justice, viz., audi alterem panem. (1058-G-H, 1059-B-C]

Visakhapatnam Municipality v. Kandregula Nukaraju & Ors., (1976) 1
SCR 545; S.L. Kapoor v.Jagmohan & Ors., (1980] 3 SCC 379; Baldev Singh
H & Ors. v. State of Himachal Pradesh & Ors., (1987) 2 SCC 510, Sundarjas
!
STATEv. P.S.K.SAMITI(SAWANT,J.] 1027
Kanya/al Bhatija & Ors. v. Collector, Thane, Maharashtra & Ors., [1989] 3 A
SCC 396, and Atlas Cycle lndusaies Ltd. v. State of Haryana & Ors., [1993]
Supp. 2 SCC 278, relied on.

9. The nyaya panchayats are in addition to the gram panchayats.
Whereas the amended provisions of the Constitution do not direct the
organisation of such panchayats, the Constitution does not prohibit their B
establishment. The organisation of the nyaya panchayats will be in promo-
tion ofthe directive principles contained in Artide 39A of the Constitution.
[1060-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3771-78
of 1995 Etc. Etc. C

From the Judgment and Order dated 2.12.94 of the AHahabad High
Court in C.M.W.P. Nos. 26812, 29984, 30003, 31248, 31069, 30989, 31048
and 29682 of 1994.

Ashok H. Desai, R.N. Trivedi, Gopal Subramaniam, G.L. Sanghi, D
P.P. Rao, Dushyant Daye, R.B. Misra, P. Sisodia, M/s. Nalin Tripathi,
Ashish Shukla, S.M.A. Nazani, Arvind Verma, Aseem Mehrotra, Ramesh-
war Tripathi, Vijay Narain Singh Sagar, A.K. Gupta, P.H. Parekh, Goodwill
Indeevar, Ms. B.K. Brar, J.M. Sharma, A.N. Bardiyar, Ashok Gurnani, M/s.
Indu Gurnani, Arun K. Sinha, M.K. Singh, A. Sharan, Abha R. Sharma, E
• P.K. Bajaj, l.B. Gaur, Dileep Tandon; R.N. Tripathi and Brij Bhushan with
them for the appearing parties.

The foUowing Judgment of the Court was delivered by

SAWANT, J. Special leave granted.. F

The Constitution (Seventy-Third Amendment] Act, 1992 came into
force on 24th April, 1993 to give effect to one of the Directive Principles
of the State Policy, viz., Article 40 of the Constitution of India which directs
the State to organise viUage panchayats as units of self-government.
G
On coming into force of the said Constitutional Amendment, the
States were required by the Centre to take steps to organise viUage
panchayats on the lines of the provision of the said Constitutional Amend-
ment by making law or amending the existing law suitably. The Uttar
Pradesh State Legislature amended its Panchayat Raj Act, 1947 H
\
1028 SUPREME COURT REPORTS (1995) 2 S.C.R.

A [hereinafter referred to as the 'Act') by enacting the U.P. Panchayat Raj
(Amendment) Act, 1994 which came into force on 22nd April, 1994. As per
the provisions of the Act, several government instructions and notifications
were issued and rules were framed between 22nd April, 1994 and 31st
August, 1994 with a view to hold elections to the panchayats. In particular
the declaration of the gram panchayat areas under Section 11-F and the
B
establishment of the gram sabhas under Section 3 were made between 2nd
and 5th August, 1994. The term of the gram panchayats constituted under
the unamended provisions of the Act was to expire on 23rci April, 1993.
The Governor extended their term till 23rd April ·1995 or ~ill new
panchayats were constituted, whichever was- earlier. The elections to the
C new panchayats were then notified on 31st August, 1994. In pursuance of
this notification the election process was to commence on 29th September,
1994.

The respondents approached the High Court by writ petitions be-
D tween 1st and 9th September, 1994 making a grievance that the Govern-
ment orders were being violated in the process of re-organisation and
. deliminatation of the constituencies. A few of the respondent-writ
petitioners also challenged the said Constitutional Amendment as well as
the vires of the Act. The High Court heard all the petitions together. The
E State Government, by filing an affidavit as well as through publications in
the press from 9th September to 19th September, 1994, offered a fresh
time-schedule of the elections and also to remove the grievances after
considering the representations. On 24th SepteD;1.ber, 1994, the State
Government cancelled the notification dated 31st August, 1994. On 26th
September, 1994, the High Court reserved its judgment. In the meantime,
F
under compulsion an.d pressure from the Centre including a threat to stop
the release of funds unless the process of election was completed by 31st
December, 1994, conveyed in the Center's communication dated 12th
November, 1994, the State Government renotified the dates of elections on
26th November, 1994 in pursuance whereof the process of election was to
G commence on 3rd December, 1994.

The High Court by its impugned judgment delivered on 2nd Decem-
ber, 1994 has held, among other things, that the definitions of 'village'
under Section 2(t), of 'Gram Sabha' under Section 2(g) and of 'Panchayat
H Area' under Section 2(11) read with Section 11-F of the Act were ultra
STATE v. P.S.K. SAMIT! [SAWANT,J.] 1029

vires the respective definitions given in Articles 243(g), 243(b) and 243( e) A
read with Article 243-C of the Constitution. The High Court has further
held: (i) that the village has to be a habitat according to the anthropological
concept, (ii) that the village for the purposes of the Panchayal can be
specified only in accordance with the wishes of the inhabitants of the village
as conveyed to the Governor who is obliged to notify it without involvement
B
of the State Government, (iii) that the Governor has to act independently
of the State Government in the matter of specification of the "village" and
(iv) further the village will have to be fixed according to the aspirations,
chauvinism and the wishes of the villagers. As regards the Gram Sabha, the
Court has held that although the definition of Gram Sabha refers to a body
of persons registered in the electoral rolls, the reference to "establishment
c
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.

It will appear from the impugned judgment that its main thrust is D
against the definition of 'village' in Section 2(t) of the Act. The other
findings are directed more against the procedure laid down in the Act to
take the various steps for constituting the panchayats than against the
substantial provisions. Before we deal with the findings of the High Court,
we may usyfully refer to the relevant provisions of the Constitution and the E
Act.

2. The provisions of Article 40, to give effect to which the 73rd
Constitutional Amendment was effected read as follows :

F
"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."

The aforesaid provisions neither define 'village' nor give guidelines G
for organising village panchayats. All that they require is that the village
panchayats howsoever organised have to be equipped with such powers
and authority as may be necessary to enable them to function as units of
self-government. There is, however, no doubt that when the Article speaks
of village panchayats as units of self-government, it has in view the or- H
1030 SUPREME COURT REPORTS [1995) 2 S.C.R.

A ganisation of the lowest level units of self-governance in the heirarchy of
self-governing, democratic, policy making and administrative units. In other
words, the village panchayats are envisaged by the Article as the base
democratic institutions of a pyramid of the "democratically organised and
functioning self- governing units. This being so, while organising the village
panchayats, what is necessary to be kept in mind is (a) that they are to be
B
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 program-
c mes 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.
D
3. 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 Constitution.

E
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 stick to any
particular, much less the vintage concept of village that the High Court has
in mind, viz., the anthropologically evolved and sociologically identifiable
F
habitat and on the other, it gives the Governor power to specify a village~
as he may deem fit. Tht; village so specified by him may include a group "-
of villages. The Constitution permits the Governor to declare any popu-
lated 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
G Constitution and not for any other purpose. Hence to bring in any par-
ticular concept of village and to read into the said Article any pre-con-
ceived notion of village is unwarranted by law.

4. Article 243 (b) defines 'Gram Sabha' to mean a body consisting of
H persons registered in the electoral rolls relating to a village comprised
STATE v. P.S.K. SAMIT! [SAWANT, J.) 1031

within the area of panchayat at the village level. In other words, it is the · A
'r- 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 243-B for the rural areas. This provision further makes it clear that
even the expression 'panchayat' is not of any particular significance. What B
is of essence is that the institution so called must be of self-guvernment 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 Constitution. 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 so
c
constituted is self-governing or not.

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 o
district levels. What is necessary to remember further is that while as per
Article 243(c) "intermedi.ate level" is a level between the village and district
levels, as specifie~y 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 E
him for purposes of the said Part of the Constitution.

Article 243-A states that a Gram Sabha which, as stated above, is the
electorate of ·the village panchayat, may exercise such powers and perform
such functions at the village level as the legislature of the State may be law p
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. G

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 seats
on each panchayat have to have, as far as practicable, a uniform ratio to H
1032 SUPREME COURT REPORTS [1995] 2 S.C.R.

A 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 constituen-
B cies. 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
C Article directs that the State enactment may also provide for the repre-
sentation 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
D and from amongst the elected members thereof.

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
E 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
p to enable them to function as institutions of self-government and such law
may contain provisions 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
G to them including those in relation to the matter 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,
H water management and watershed development, (2) Social forestry and
STATE v. P.S.K. SAMITI [SAWANT, J.) 1033
farm foresty, [3] Small scale industries, including food processing in- A
dustries, [4] Khadi, village and cottage industries, [5) Rural housing, [6)
Roads, culverts, bridges, ferries, waterways and other means of com-
munication, [7] Rural electrification, including distribution of electricity, [8]
Non- conventional energy sources, [9] Poverty alleviation programme, [10]
Education, including primary and secondary schools, [11) Technical train-
B
ing 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 the Scheduled
Tribes. c
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 are levied and collected by the State
Government, to provide for grants-in-aid from the Consolidated Fund of
D
the State and also to provide for the constitution of Funds for crediting all
money 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 provision with E
respect to the maintenance and auditing of the accounts of the panchayats.

Article 243-K provides for a State Election Commission to conduct,
supervise, direct and control the elections including the electoral rolls.
Article 243-0 states that the validity of any law relating to the delimitation F
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 ~y law made by the Legislature of
a State. It is in the light of the aforesaid provisions of the Constitution that G
we have to examine the provisions of the State Act.

5. As stated earlier, The State enactment, viz., the U.P. Panchayat
Raj Act, 1947, has been amended and brought upto dates to bring it in
conformity with the amended provisions of the Constitution, viz., Article H
1034 SUPREME COURT REPORTS [1995] 2 S.C.R.

A 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 consisting
~-
of persons registered in the electoral rolls relating 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 Commis-
B
sion 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
c level panchayat will have the meaning assigned to it under the said Ad-
hiniyam 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.

Section 2[t] of the Act defines 'village' to mean any local area
D 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.

Section 3 of the Act provides for the establishment of Gram Sabha
E 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 group of villages,
the name of the village having the largest population, shall be specified as
the name of the gram sabha.

F Section 5-A gives the disqualifications of a person from being chosen
as and for being a mel;nber of gram 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 superin-
G tendence, 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
H who is not less than 18 years of age on the first day of January of the year
STATEv. P.S.K.SAMITI [SAWANT,J.] 1035

in which the electoral roll is prepared, will be entitled to be registered in A
the electoral roll for the territorial constituency. It is not necessary to refer
.:r· 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 purpose of preparation of the electoral roll for a
territorial constituency adopt the electoral roll for the Assembly con- B
stituency 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 vote 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 C
the age of 21 years shall not be qualified to b"e elected as a member or
office bearer of the gram panchayat.

Section 11 provides for the meetings and functions of gram sabha.
Sub-section (3] thereof speaks of the functions of gram sabha which, among D
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
undertaken during the current financial year; (c] the promotion of unity E
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 F
implementation of development schemes pertaining to the village; and (c]
r~dering assistance in the implementation of development schemes per-
taming to the village.

Section 11-A provides for Pradhan and Up-Pradhan of gram
panchayat who are to be chairperson and vice-chairperson respectively G
thereof under the Act. It also provides for reservation of offices of Prad-
hans for the Scheduled Castes, Scheduled Tribes and the backward classes.
Section 11-B provides for the direct election 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 H
A
1036 SUPREME COURT REPORTS (1995) 2 S.C.R.

panchayat from amongst themselves. The term of both the Pradhan and
Up-Pradhan is co-terminus with that of the gram panchayat.
'I

Section 11-F provides for declaration of panchayat area and states
that the State Government may by notification declare any area comprising
R -~ 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 decla-
ration 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
C 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 then 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
D shall cease to be a panchayat area on the request of a gram panchayat
concerned or otherwise.

Section 12 provides for the establishment of gram panchayat for
every panchayat area. Section 12(1)(c) states that the gram panchayat shall
consist of a panchayat and in case of a panchayat area having a population
E of [i] 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
F 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 '"'-f' 'lii
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 of 1000, and of even
less in the hill area. The territorial constituencies for election as members
G to the gram panchayat are to be formed in such a manner that the ratio
between the population of each concenstituency and the number of seats
allotted to it, shall so far as practicable, be the same throughout the
panchayat area. Each territorial cons'tituency of a gram panchayat is to be
represented by one member in the gram panchayat. Not less than 1/3rd of
H the seats earmarked for Scheduled Castes, Scheduled Tribes and backward
STATEv. P.S.K.SAMID(SAWANT,J.] 1037
classes under sub-section [5](a) are to be reserved for the women of these A
categories whereas not less than 1/3rd of the total number of seats in the
gram panchayat shall be reserved for women.

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 Election Com- B
mission. 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 authority. Section 14 provides for the removal of Pradhan and
Up- Pradhan in certain circumstances. Section 15 mentions, as many as 30 c
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.
D
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 the following functions, viz., (a] management and maintenance of a
forest situated in the Panchayat area; (b] management of wastelands, E
pasture lands or vacant lands belonging to the Government situated within
the Panchayat area; [c] collection of any tax or land revenue and main-
tenance 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. Section 19 provides for main- p
tenance 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 G
gram panchayat. Section 32-A gives power to the State Government to
constitute 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 H
1038 SUPREME COURT REPORTS (1995] 2 S.C.R.

A is not ne~essary to refer to other provisions of the Act for our purpose.
6. We may now refer to the criticism by the High Court of certain
provisions of the Act as being ultra vires the Constitution.

As stated earlier, the main thrust of the High Court's judgment is
B 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 two counts. According to it, firstly, Section 2[t] is inconsistent
with the concept of village as contemplated by Article 243[g] of the
Constitution and secondly, whereas the said Article requires the Governor
C of the State to specify the village, Section 2[t] gives the power to the State
Government to declare i(

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
D to the organisation of "village panchayats" as units of self-government.

'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
E and smaller than a town; ... a small self-contained district or community
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
F mainly dependent upon agriculture or occupations subservient thereto.
When the area is occupied by persons who are engaged mainly in commer- ~· '-...
cial pursuits, rural areas in the vicinity of a town grow into a suburb of the
town. __..i..

The Encyclopedia Americana (1983 Ed.] [Vol. 28] states that village
G is -

"a type of community, generally small but without exact or com-
monly accepted size limits. Generally, in the United States, the
village is thought to be intermediate between the hamlet [a settle-
H ment with several families and some form of commerce but more
fit
I

STATEv. P.S.K.SAMITI[SAWANT,J.) 1039

than 50 people) and the town [generally over 1,000 peoplej. A

Dealing with the origin and evolution of village, it stales 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 B
settlement of lands that previously were only thinly occupied by
indigenous populations, but probably also derives from the emer-
gence 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
c
was one basis for the village form of rural settlement, the com-
munity being set amid the tillage and grazing lands."

x x x x x x x x x x x x x

"Growing awareness of the nearly universal appearance of the D
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 accumulated. The interpretation of the village pattern
E
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 rudiments of local government.

Since size-limits will not precisely distinguish villages from F
other types of communities, the question arises as to whether the
term has a precise meaning. All communities or settlements called
villages in popular language or technical studies cannot be brou~t
within a common definition.... Generally, however, a village is a
residential and trading centre for a predominantly agricultural
economy. Its social controls are predominantly traditional and G
informal; more formal administration and government are typical
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 modern transportation, communication, and agencies
of central government. The population of the village, unlike that H
1040 SUPREME COURT REPORTS [1995) 2 S.C.R.

A of most cities and many towns, is self-recruited rather than im-
migrant. This, and the tnidition~l informality of social standards
and controls, lends a disl'inct quality of homogeneity that the more
cosmopolitan center does not have.

The collapse of the theory that the village is the basic com-
B munity 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 formal
tolerance of difference that the cultural heterogeneity of the city
encourages or requires. And it cannot be assumed that villages are
c 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 Wnited
States, with its short history and absence of an officially recognized
aristocracy, leading families are more likely to receive deference
D in villages than in larger and more impersonal communities. The
integration of village life, cir lack of social problems and tensions,
has also been exaggerated. Conflicts may smoulder or burn bright-
ly, all the more because the parties know each other and personal-
ize the antipathy.
.E
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 by the
encroachments of an urban-industrial civilization. Many small
towns, technically villages, have virtually disappeared as their
F
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 integrity are difficult to
maintain with high rates of residential mobility and in the face of
steady inroads of an essentially urban civilization.
G
The village community may be defined as a group of people
who.~live in· 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
H over which the community cl~s right. Further characteristics
STATEv. P.S.K.SAMITI[SAWANT,J.] 1041
include a predominance of agricultural occupations, a close A
relationship to the natural environment, 6trong 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 rmal settlement, but not the only one.
B
x x 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 c
related people who settled independently in a specified spot. In
time, the original households branched out into many separate
ones, clearing more land as the need arose. Occasionally they
included strangers, who were sometimes adopted but more often
relegated to second-class membership, tolerated rather than ac- 0
cepted. 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 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 E
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, and specifically India, where he
had carried out extensive field research [Village communities in F
the East and West, 1871).
:1Y
Several other scholars criticized Maine's theoretical reconstruc-
tions-Modern anthropologists and sociologists take the position
that both developments took place. They recognize that the evolu-
tion and structure of human settlements in general, and of village G
communities in particular, are closely connected with specific
historical developments and ecological, socio-political, 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 H
1042 SUPREME COURT REPORTS [1995] 2 S.C.R.

A and function of village communities, in an attempt ~o gain a basic
understanding of the essential nature of living arrangements there-
m.

x x x x x x x x x

B As their characteristic features, peasant villages 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 ritual~, which frequently --,.....
stress the power of the community to deal with the supernatural
c 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
D goods reach the peasant level, there is a tendency to limit 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
E retained mechanisms of internal control, whether through govern-
ment-approved local leaders or through informal leadership and
community sanctions. Emotional attachments face inward. The
individual's first loyalty is to his family, then to his community, and
only then to whatever is beyond. The various elements of this·
F characterization may be developed more strongly in some villages
then in others, but as a type they are recognizable and clearly "-'\ ~
distinct from tribal groups, farming settlements, and city forma-
tions."

7. It is common knowledge that the needs of the people change with
G the development in the economic, scientific and technological fields as also
with the developments in transport and communication. With them, the
concept of self-sufficiency and the means, mode and range of self-gover-
nance also change. What is more, the units of self-governance at the lower
level being interrelated and integrated with those at the higher levelS' as
H parts of the whole scheme of administration and development in the State,
STATEv. P.SXSAMITI(SAWANT,J.) 1043

have to respond to and fall in line with the growth in the size and operation A
of the units at the higher level to form a coordinated democratic polity and
administrative machinery. The concept of grassroot or lowest level ad-
ministration 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
B
economic growth. They have to act as vehicles of overall stability and
progress. For that purpose, their constitution and functioning have to be
in conformity with the larger social, political and economic goals.
l,
r Hence there cannot be any immutable social, political, economic or
organisational concept of village as a self-governing unit. In a developing C
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 0
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 E
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. F
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 considering 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 G
Mahathmaji and against which he fought throughout his life. If separate
identities, chauvinism, divisible sentiments and feelings are nurtured from
the grassroot level, they are bound to erode the foundation of the unity and
integrity of the country and should be the last thing on the social and
political agenda of the country. On the other hand, the need of the day is H

-·
1044 SUPREME COURT REPORTS (1995] 2 S.C.R.

A 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 relation-
ships and attachments go and have their place in certain limited spheres.
But they have no place while shaping democratic political and administra-
tive units. Nor are they necessarily conducive to social and economic
B
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 inost 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
c necessarily healthy or desirable for promoting wider and diverse interests
1
and attaining larger goals. On the other hand, they often prove insurmount-
able 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 oppor-
D tunity; and fraternity assuring the dignity of the individual and the unity
and integrity of the 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 at the lowest
E 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 perpetuation as political and administrative units to attain the
F
modern 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
~ormously but the complexion of the rural areas has also undergone a
;Change. With the increasing pressure on land, there has been a steady
G ' 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 of comparative
prosperity, thanks to marginal industrial and commercial activities around
them and the nearness to the urban and semi-urban areas. There is further
H a limit to the number of village panchayats which may be constituted with

•
STATE v. P.S.K. SAMITI [SAWANT, J.] 1045
all the overhead expenses involved in the exercise which must have a A
rational relation to the result sought to be achieved. In the State of 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
8
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
r
5 kilometres ·radius-distance, haUB-faCf fries to observe the principle of c
self-governance as closely1iS possible.

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 are unable to appreciate the portions of the impugned D
judgment dealing with the sentiments, feelings, chauvinism and will of the
people [pages 16-20); 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 E
of Gram Sabha for a group of villages are ultra vires, and beyond the
intention of the Constitution [pages 32-33); that status of Gram Sabha has
been compromised and belittled in that Act itself [pages 37-38]; holding
that the Act in explaining the expression 'gram sabha' offends the.Constitu-
tion and negates the concept of local self-government [page 40); and stating
F
that Section 11-F gives rise to misunderstanding as it has scope for over-
lapping and duplication in notifying and declaring areas comprising a
village or group of villages into panchayat area [pages-59).

8. As pointed out above, Article 243 [g] of the Constitution defines
village to mean "a village specified by the Governor to be a village and G
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 H
1046 SUPREME COURT REPORTS [1995) 2 S.C.R.

A the "village panchayat". It is not disputed that almost all villages in the State ·
have been recorded in the revenue records of the respective districts in
which they are 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
B
villages and in addition also those villages and settlements which are not
so recorded in the revenue records 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
c Governor while acting under Article 243 [g] for specifying the village may
adopt the same as village. No restriction has been placed by Article 243
[g] on the Governor for accepting the revenue village as a village for the
purposes of constituting village panchayat. In fact, the Governor has been
empowered by the said constitutional provision to declare even a group of
D 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
E 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
F
Acts were replaced by the U.P. Kshettra Samities and Zila Parishads
Adhiniyam, 1961. If, therefore, there is no restriction placed by the Con-
stitution on the Governor in accepting any inhabited rural area 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
G village. In any case, the Court cannot substitute its concept of village for
that of the State Government.

9. 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
H to the State Government to do so, the High Court has failed to notice the
STA TE v. P.S.K. SAMITI (SAWANT, J. j 1047

provisions of the Constitution which equate the Governor with the State A
_). Government in exercise of his functions except where he is by or under the
Constitution required to exercise the function in his discretion. In this
connection, we may refer to the provisions of Article 163 of the Constitu-
tion which state that there shall be a Council of Ministers with the Chief
Minister at the head to aid and advise the Governor in the exercise of his
B
functions except when they are to be exercised by· him under the Constitu-
tion 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
r exercising the non-discretionary functions, the Governor cannot act without
the aid and advice of the Council of Ministers. To do so will cut at the very C
root of the cabinet system of Government we have adopted. In this con-
nection, 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' D
occurs in Article 154 [1) to bring out the federal principle embodied in the
Constitution. Any action taken in the exercise of 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 are two significant features in regard to the executive
action taken in the name of the Governor. First, Article 300 states, among E
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
F
executive action of the State. Paragraph 48 of the said judgment 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 Constitu- G
tion on the aid and advice of his Council of Ministers, save in
spheres where the Governor is required by or under the Constitu-
tion to exercise his functions in his discretion. Wherever the
Constitution requires the satisfaction of the President or the
Governor for the exercise by the President or the Governor of any H
1048 SUPREME COURT REPORTS (1995) 2 S.C.R.

A power or function, the satisfaction .required by the Constitution is
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
B
decision of any Minister or officer under Rules or Business made
under any of these two Article 77 (3] and 166 (3] is the decision
of the President or the Governor respectively. These articles did
not provide for any delegation. Therefore, the decision of a Min-
ister or officer under the Rules of Business is the decision of the
c President or the Governor."

Admittedly, the function under Article 243 [g) is to be exercised by
the Governor on the aid and advice of his Council of Ministers. Under the
rules of business made by the Governor under Article 166 (3) of the
Constitution, it is in fact an act of the Minister concerned or of the Council
D 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 said to be
inconsistent with or contrary to Article 243 [g). Further, Section 3 (60) (c)
E 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.

F 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
G 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 notifiea-
H tions when iv:ade or issued by the State Government are made or issued in
- ·-~
STATE v. P.S.K. SAMITI [SAWANT, J.] 1049
the name of the Governor by the functionary of the concerned Ministry A
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 are exercised by the Governor except where he is required under B
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.
c
In the present case by the notification dated 9th May, 1994 issued
under Section 96-A of the Act by the 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 Direc- D
tor issued notification establishing gram sabhas under Sections 3 and
declaring panchayat areas under Section 1.1-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 gram sabhas and E
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 clear that Section 2 [t] merely
defines 'village' and by itself does not give power to the State Government p
to declare the 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 area which the State Government may by general or special
order declare to be a village for the purposes of the A~t. The said section
is, therefore, in two parts. By the first part, it adopts the villages recorded
in the revenue records of the districts ·as villages for the purposes of the G
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 H
1050 SUPREME COURT REPORTS [1995) 2 S.C.R.

A 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
-L.
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 Government is wrong for it is not possible
B
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 titled as gram
pa~yats are established for villages within the meaning of Section 2[t]
c and they comprise 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 are~s may be justified in that they do not refer to
Section 2(t] and the latter notification has given inappropriate titles in
0
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 considera-
E tion. 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.

We also find no merit in the contention that the first part of Section
F 2[ t1 which defines village !o mean any local area recorded as a village in
the revenue records of the district in which it is situate, goes counter to
-the provisim:~s _of Article 243 [g] in that it forecloses the authority of the
Gpvernor to specify the village for the purposes of establishing a gram
panchayat as envisaged by Part IX of the Constitution. The argument
jgnores that .whereas the Constitution permits the Governor to specify
G 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 i~ further, the Act has received the assent of the
H · Gorernor on 22nd April, 1994. Hence, there is not only no conflict between
STATEv. P.S.KSAMITI [SAWANT,J.] 1051

the provisions of Sections 2[t] of the Act and those of Article 243[g] but A
there is an over-compliance with the provisions of the Constitution.

10. 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 that in Section 2[g] of the Act and, therefore, the latter definition is B
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
r 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 C
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 D
sabha for a village or a group of villages by such name as may be specified,
and to name the gram sabhas 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 E
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 automat-
ically constituted into the gram sabha. It no longer remains merely an p
electorate. Whether such constitution is called establishment is immaterial.
These are matters of description. Having followed a particular pattern, the

,._.
I
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 G
of the Constitution. Surely, it is not suggested that the gram sabha that the
Act seeks to establish does not consist of the entire electorate in the
panchayat area or excludes some of it. 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, H
1052 SUPREME COURT REPORTS [1995) 2 S.C.R.

A 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.

The High Court has also held that the provisions of Section 3 of the
B 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
C 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 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 eqUip-
D ment to implement the projects and schemes. It is 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.

11. The High Court has also declared the provisions of section 2[11)
E 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 as 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.
F 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
G 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
tlie 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
H panchayats and leaves it to the legislature of a State to make provisions
STA TE v. P .S.K. SAMIT! [SAWANT, J.] 1053

with respect to it. The only conditions that the latter Article imposes on A
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
B
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 toit have
as far as practicable to be the same throughout the panchayat area. So long
r 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 C
see any material before us to suggest that these two criteria are breached
or are sought to be breached. On the other hand, section 11-F of the Act
has made three provisions to conform 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
0
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 E
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 in an obvious error. When the
pane' ayat area is determined on the basis of population inhabiting a
particular area, that area will also be a panchayat area within the meaning
F
of the said Article. The provisions of the Act, viz., Section 2[11) read with
Section 11-F do not more than give effect to the definition of panchayat
area in Article 243 [e). When the area includes the whole of the village or
a group of whole villages including the hamlets thereof, keeping in view the
uniform norm of the population of 1000 as far as practicable, the panchayat
area gets automatically demarcated by the areas of the village or villages G
comprised therein.

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. H
1054 SUPREME COURT REPORTS (1995) 2 S.C.R.

A 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. T1ie State of Olissa and Others, (1961) 2 SCR 537.
· In this case, the petitioner-mine owners, had among others, challenged the
B method prescribed "by the legislature for recovering the cess under the
Orissa Mining Areas Development Fund Act, 1952 on the ground that it
was unconstitutional. 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
C a statute solely on the ground that the method adopted for the recovery of
the impost can and generally is adopted in levyin~ a duty of excise.

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
D the interference by the courts in electoral matters including the questioning
of the validity of nay 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
E ·connection, refer to a decision of this Court in Meghraj Kothari v. Delimita-
tion 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 of the Scheduled Castes. This was
challenged on the ground that the petitioner had a right to be a candidate
F for Parliament from the said constituency which had been taken away. This
Court held that the impugned notification was a law relating to the '1/ \.
delimitation of the constituencies or the allotment of seats to such con-
stituencies made under Article 327 of the Constitution, and that an ex-
amination 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
G 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
H Commission Act and published under Section 10(1] of that Act is not part
STATE v. P.S.K. SAMITI (SAWANT,J.) 1055
of an Act of Parliament, its effect is the same. Section 10 [4] of that Act A
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 of 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 B
nor of the constituencies in this 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 delimita-
tion, ·no objections were invited and no hearing was given. Even this
r
I
challenge could not have been entertained after the notification for holding
the elections was issued. The High Court not only entertained the challenge C
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.

While supporting the judgment of the High Court, the respondents D
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 Articles 243 [g) of the Constitution. We have pointed
out earlier that under the Constitution, Governor means the State Govern- E
ment. 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 F
mentioned in the said Part to any subordinate officer. The Act makes a
specific provision by Section 96-A thereof for the State Government to
delegate all or any of its powers under the Act to any 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, G
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 H
1056 SUPREME COURT REPORTS [1995] 2 S.C.R.

A not see any substance fo this contention either.

A .part of the aforesaid contention was that the Director by his
-L
Circular dated 12th May, 1994 had delegated the function 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
B
the powers given by the State Government. We are afraid that this conten-
tion 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 gram panchayats according to the guidelines given in the 1'
C Circular which were in terms of the provisions of the Act. Those proposals
were to be finally processed by the Director himself and that is what the
Director ultimately did as 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.
D

12. 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
E 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 31st 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
p 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 constitute the
new panchayats. However, during the hearing of the writ petitions before
the High Court, the State Government had in its counter-affidavit volun-
tarily offered to remove the said grievances and invite the objections afresh
G 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 its own canceled 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,
H 1994 received from the Centre, to which we have already made a reference,
STATEv. P.S.K.SAMffi[SAWANT,J.) 1057
threatening to stop the release of funds, the State Government wai. com- A
pelled to renotify the elections of 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.

Before us, again, in order to prove its bone fides, the State Govern- B
ment voluntarily offered to hear the respondents with regard to their
grievances and for that purpose to cancel the notification dated 26th
-t r November, 1994 and reschedule the election process without prejudice to
their contentions in the appeal. By our interim order dated 9th February,
I 1995, we permitted the State Government to cancel its notification dated c
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 :
D
The Governor may adopt the Notifications issued by the Direc-
tor 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 E
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 obje~tions
are disposed of final Notification or Notifications will be issued by
the Governor. F

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 G
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 Notifica:tioo/s/is/are iss~ed, the State Election H
1058 SUPREME COURT REPORTS [1995) 2 S.C.R.

A Commissioner may proceed with the conduct of the elections."

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.

B
13. 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 f-
2nd and 5th August, 1994 were valid. We have already held that since the
Governor means the State Government, the Legislature could emJoWer the
C State Government to delegate all or any of its powers under the Act to any
1
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
D 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 Gover-
E . nor pursuant to our interim order, therefore, in no away reflect adversely
on the validity of the notifications issued by the Director.

We must also make it clear that we had passed the interim order, as
stated earlier, pending the decision and without prejudice to the conten-
F tions of the State Government that the election process once started could 'I
not be set at naught by raising objections on the ground that the delimita- ~4 \-
tion 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
G and the Court could not have entertained the challenge. There was, there-
fore, 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 proceedings, referring to the lacuna in the steps taken by the
State Government to finalise the panchayat areas only with a view to point
H out that it was obligatory on the State Government to heat the objections
STATEv. P.S.K.SAMffi[SAWANT,J.) 1059

before the panchayat areas were finalised. The ratio of the decisions of this A
_\ 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 Kanya/al Bhatija & Ors. v. Collector, Thane, Maharashtra & Ors.,
[1989] 3 SCC 396 and Atlas Cycle Industries Ltd. v. State of Hmyana & Ors.,
B
[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 panchayaI when they were earlier under separate gram
panchayats, does involve civil consequences. However, as held in Visak- c
. hapatnam Municipality, S.L. Kapoor, Baldev Singh, S.L. Bhatija and Atlas
Cycles cases, in m.attres which are urgent even a post-decisional hearing is
a sufficient compliance of the principle of natural justice, viz., audi alteram
partem. 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 D
and before us.

14. We are, therefore, more than satisfied that there were no ma/a
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 clear that although, as pointed out earlier, the E
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 p
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,
invonveniences 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 sugges- G
tions for better and more viable, compact and cohesive regrouping of the
villages for efficient administration and economic development. The objec-
tions 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 H
1060 SUPREME COURT REPORTS [1995) 2 S.C.R.

A areas, after hearing the objections and suggestions, will, of course, be that
of the State Government acting through the Director.

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 sucli panchayats e.nd, there-
B fore, 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 nayay
panchayats under the Act is different from the basis of the organisation of (

C
the gram panchayats, and the functions of the two also differ. The nyaya
panchayats are 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.

As pointed out above, the decision of the High Court suffers from
D 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 aside
with costs throughout.

R.A. Appeal Allowed.