JUDGMENT Uday Sinha, J.
1. These are a batch of civil writ applications in which the power of the District Magistrates to nominate Mukhias and members of the Executive Committee has been challenged.
2. The questions raised in these writ applications may be set out as follows :--
(i) Is the provision of nomination in the proviso to Section 10 of the Bihar Panchayat Raj Act (hereinafter called the Act) ultra vires the Constitution ?
(ii) Is the provision for nomination in Section 10 ultra vires Section 2 (j) of Panchayat Raj Act ?
(iii) Consequent upon the striking down the provision of Section 10 as amended by Bihar Panchayat Raj Amendment Ordinance, 1987 (Ordinance No. 3 of 1987) in Janardan Pas-wan v. The State of Bihar, 1987 P. L. J. R. 875, whether the proviso to Section fO as it existed prior to 1987 still part of the Panchayat Raj Act.
(iv) when the boundaries of any existing Gram Panchayat are altered by addition or subtraction in terms of Section 3 (3) of the Act so as to split one Gram Panchayat into more than one Panchayat, are all of them newly established Gram Panchayat or the Panchayat with the old name continues to exist as an old Panchayat.
(v) Does the proviso to Section 10 relating to the nomination of Mukhias and members of the Executive Committee amount to infraction of Article 14 of the Constitution?
(vi) Is a Pramukh of a Panchayat Samiti same as Panchayat Samiti itself and in that behalf whether a District Magistrate is required to nominate on the recommendation of the Pramukh alone or whether he is required to nominate on the recommendation of the Panchayat Samiti as a body ?
3. Besides the above, there are other questions depending upon facts of each case. They will be considered while taking up individual case.
4. I shall now consider the weight of the contentions advanced by counsel for the parties. In order to bring out the point in clear perspective, it may be useful to set out some facts of C.W.J.C. No. 6340 of 1989. The petitioner in this case is Mukhia of Hansi Malahi Gram Panchayat within Lalganj Police Station in the district of Vaishali. This Gram Panchayat was established in 1950. The last election is this Gram Panchayat as in all the Gram Panchayats of this State took place in 1978. The petitioner was elected Mukhia on 12-12-1978. Thereafter, no election has been held and the petitioner continues to be the Mukhia.
5. In 1985 by Government notification dated 5th November, 1985 Annexure 2 to this writ application (C.W.J.C. 6340/89) three villages Raghunathpur, Imadpur and Mian-baira were taken out and a separate Gram Panchayat was constituted by the name of Raghunathpur Imadpur Gram Panchayat. Another notification was issued on the same date (Annexure 3) constituting Hansi Malahi Gram Panchayat twelve villages mentioned in the said notification. Those Gram Panchayats were established on 5-11-1985. While Raghu-nathpur-Imadpur Gram Panchayat was constituted in exercise of powers under Section 3(1) of the Gram Panchayat Act, the Hansi Malahi Gram Panchayat was constituted in terms of Section 3(3) of the said Act. There is no controversy that Raghunathpur Imadpur was a new Gram Panchayat. The controversy is over the status of Hansi Malahi Gram Panchayat. Is it a new Gram Panchayat or is it the old Gram Panchayat ? That is the question.
6. By Circular No. 5783 dated 30-6-1989 (Annexure 4) the Commissioner-cum-Secre-tary, Rural Development department, directed all District Magistrate to nominate Mukhia and members of the Executive Committee within two weeks. The Block Development Officer-cum-Secretary, Lalganj Panchayat Samiti by order (Annexure 4/1 called a meeting of the Panchayat Samiti for recommending names for the office of Mukhia and members of the Executive Committee for nomination by the District Magistrate. The petitioner is aggrieved by the steps taken by the Government to nominate Mukhia and other office bearers by Annexure 4 and 4/1. Hence, the present application for quashing Annexures 4 and 4/1. This application was filed on 15-7-1989. On 24-7-1989, a Bench of this Court ordered that the nomination of Mukhia by the District Magistrate be stayed.
7. In the backdrop of the above facts, the contentions urged on behalf of the parties may now be considered.
8. The first contention is that the provision for nomination of Mukhias in terms of the proviso to Section 10 of the Act is against the democratic pattern of our society. Thus it offends the basic structure of our Constitution. This contention was advanced by Mr. Pramod Kumar Sinha.
9. Section 10 of the Panchayat Raj Act originally read as follows:--
"Section 10. Election of Mukhia: As soon as may be after its establishment every Gram Panchayat, shall, in the prescribed manner, elect from its own members a Mukhia."
In order to appreciate the contention of Mr. Pramod Kumar Sinha, learned counsel for the petitioner in C. W.J.C. No. 6340 of 1989, it would be useful to set out the provisions of Section 10 of the Act which reads as under:--
"Election of Mukhia: -- As soon as may be after its establishment every Gram Panchayat shall, in the prescribed manner elect from among its own member, a Mukhia:
Provided on the recommendation of the Panchayat Samiti or Block Development Committee, having regard to the provisions of Section 79, the Collector may nominate Mukhia for the newly constituted Panchayat and eight members of the Executive Com-mittee under the provisions of Section 79 and the proviso to Clause (iii) of Sub-section (1) of section 11, whose terms of office shall expsire on the date of taking oath of the elected Mukhia."
Counsel for the petitioners in various writ applications had no objection to the main section which lays down that after the establishment, every Gram Panchayat shall elect a Mukhia from among its own members. The proviso quoted above, clothed the Collector of the district to nominate Mukhia for anewly constituted Panchayat and eight members of the Executive Committee. The entire exercise is aimed at the proviso. In this behalf, it was contended that the whole scheme of Panchayat Raj Act is democratic and conceives of elected Mukhia and members of the Executive Committee. To nominate Mukhia and members of the Executive Committee would be negation of the entire democratic process. It was, therefore, ultra vires the Constitution. Learned counsel for the petitioner drew inspiration to support his submission upon the proviso of Section 2 (j) which reads as follows;--
"Mukhia" means the head of the Executive Committee elected under Section 1C".
Learned counsel for the petitioner contended that the Act conceived only of an elected Mukhia. The proviso to Section 10, therefore, was not only against the democratic pattern of the Statute but also a contradiction of the "Mukhia" as defined in Section 2(j),
10. I regret, there is no substance in this submissions. There is no fixed pattern of any democratic society. Every society claims to be democratic and yet the patterns it adopts assume varying hues. Thus there is no rigid straight jacket notion of a demoractic society. The vires of the provision of any Statute cannot be tested on the touchstone of political philosophy. The pattern of any constitution must be spun out of the provision of the enactment. The concept of nomination is not a negation of the democratic process. There are examples galore for nomination of office bearers. Nomination is never negation of democratic pattern. In my considered opinion, therefore, the proviso to Section 10 of the Act does not offend the basic structure of the Constitution. It cannot, therefore, be held to be ultra vires the Constitution. The first point is thus disposed of against the petitioners.
11. The second point is whether the proviso to Section 10 is ultra vires or repugnant to Section 2(j) of the Act which defines or describes a Mukhia as the head of the Executive Committee elected under Section 10 of the Act. We have therefore, to look to the provisions of the Act. Section 10 of the Panchayat Raj Act provides for election of a Mukhia. The proviso provides for nomination. Apparently, there appears to be a contradiction. The contradiction, however, is not real. No doubt, Mukhia is defined as a person "elected" under Section 10 but while it speaks of election it also refers to Section 10 of the Act. That Section must be read as a whole, taking the proviso also into account. The proviso conceives of nomination of a Mukhia. Thus the word "election" must be read as including nomination. It is also understandable why the proviso was enacted. For that purpose we will have to see how a Gram Panchayat is established. Section 3 empowers the Government to establish a Gram Panchayat by issuance of a notification. Thus a Gram Panchayat is established merely by issuance of a notification. The process of election/nomination of the office bearers-Mukhia, Sarpanch, Executive Committee, etc; -- will follow thereafter. There will, therefore, be a time lag or gap between establishment of a Gram Panchayat and the office bearers to eater upon office. That is why, the proviso to Section 10 was enacted. The proviso is only an interim measure to fill up the interegnum between the establishment of a Gram Panchayat and the. constitution thereof by elected office bearers entering upon their office. The proviso thus is well conceived. The proviso deals only with newly established Gram Panchayats not in regard to a Panchayat which existed from before. Even in the matter of nomination in terms of the proviso to Section 10 the Collector has not been given a free hand. He has to act within certain guide banks. He has to act on the recommendation of the Panchayat Samiti or Block Development Committee and that too in conformity with the letter and spirit of Section 79 of the Act. Section 79 lays down the disqualification for election, nomination or appointment of Mukhia. To enumerate some of them a person to be nominated must be a subject of India, must not be in the service of Central/ State Government, etc; who has not been adjudged by a competent Court to be of unsound mind, is not under twenty five years of age etc. The proviso is thus within the rationale. Once again it may be appreciated that it is not Section 10 alone which conceives of nominated Mukhia. Section 79 also conceives of nomination of Mukhia or other office bearers. Section 79 so far as is relevant, reads as follows:--
"Notwithstanding anything contained in this Act, a person shall be disqualified for election, nomination or appointment as a Mukhia, member of the Executive Committee, Sarpanch, or Panch."
It is thus obvious that the law makers had conceived of nomination of Mukhia as well, though for only a (sic) period. It was not beyond their conception, although they were aware of the definition in Section 20). In my view, therefore, the word "election" in Section 2(j) must take in its sweep nominated as well as elected. The proviso to Section 10 is as much a handiwork of the law makers as Section 2(j). The legislators must be credited while enacting the proviso to Section 10 to the existence of the definition in Section 2(j). Attempts must, therefore, be made by Courts to reconcile the apparently irreconcilable position.
12. It is well established that every efforts must be made to reconcile different provisions of a Statute and repugnancy should not be inferred lightly. In Ramaswami Nadar v. State of Madras, AIR 1958 SC 56 : (1958 Cri LJ 2281), it was stated at paragraph 6 as follows (at page SC 59; AIR 1958) :--
"If, in construing the Section, the Court has to supply some words in order to make meaning of the Statute clear it will naturally prefer the latter construction which is more in consonance with reason and justice."
Further, in Kuriakose Kurian v. Saramma Chacko, AIR 1964 Kerala 154 a Full Bench of the Kerala High Court observed as follows (at page Kerala 156; AIR 1964) :--
"In interpreting statutes the legislative intent has to be gathered by reading all the provisions of the statute including the interpretation or the definition clause. By so reading the entire statute if the legislative intent is not clear, Courts have merely to interpret the words used strictly grammatically, without reference to the consequence of the interpretation. But, if it is possible to gather the intent of the legislature and if it is then found that such legislative intent cannot be given effect because of the legislative definition, the legislative intent must prevail over the legislative definition and the latter should not be allowed to control the former."
In Vanguard Fire and Genera! Insurance Co. Ltd. v, M/s. Fraser and Ross, Chartered Accountants, Madras, AIR 1959 Madras 336, C.J. Rajamannar laid down as follows (at page Madras 339, AIR 1959) :-
"Undoubtedly when a term is defined in an enactment, wherever that term occurs, the definition would ordinarily apply; but there is a well known canon of construction that in certain circumstances when a strict adherence to the rule would lead to an anomaly or repugnance, the rule would apply only when there is nothing repugnant to it in the context."
The above proposition was spelt out following the decision of Blackburn J. in R. v. Ramagate, (1927) 6B and C 712 at page 717, where it was laid down as follows :--
"It is, I apprehend, in accordance with the general rule of construction that you are not only to look at the words, but you are to look at the context, collocation and the object of such words relating to such matter, and interpret the meaning according to what would appear to be meaning intended to be conveyed by the use of the words under the circumstances."
I am in respectful agreement with the views propounded above. In this case if we presume that Mukhia must necessarily be an elected Mukhia that would be nullifying the proviso to Section 10. But definition in that situation of 'Mukhia' cannot be allowed to prevail over the mandate of the legislature in Sections 10 and 79 of the Bihar Panchayat Raj Act. In my concluded opinion, therefore, the proviso to Section 10 cannot be held to be repugnant to Section 2(j).
13. The third contention is that the proviso to Section 10 is no more on the Statute book after the decision of a Full Bench of this Court in Janardan Paswan v. The State of Bihar, 1987 PLJR 875 : AIR 1988 Pat 75,and, therefore, the Collector has no power to nominate the Mukhia for a newly constituted Panchayat. In order to appreciate this contention, it is necessary for us to have a look at the legislative history of Section 10. The Panchayat Raj Act was enacted in 1947. Originally the section only read as follows :--
"Section 10. As soon as may be after its establishment, every Gram Panchayat shall, in the prescribed manner, elect from among its own members a Mukhia."
In 1978 following proviso was added : --
"Provided on the recommendation of the Panchayat Samiti or Block Development Committee, having regard to the provisions of Section 79, the Collector may nominate Mukhia for the newly constituted Panchayat and eight members of the Executive Committee under the provisions of Section 79 and the proviso to Clause (iii) of Sub-section (1) of Section 11, whose terms of office shall expire on the date of taking oath of the elected Mukhia."
In 1987 an Ordinance was issued: Bihar Panchayat Raj (Amendment) Ordinance, 1987 (Ordinance No. 3 of 1987). Section 2 of this Ordinance reenacted/ substituted Section 10 in the following terms :---
"10. Election of Mukhia -- Every Gram Panchayat shall, as soon as may be after its establishment, elect in the prescribed manner from amongst its own members a Mukhia :
(a) Out of the total number of seats of Mukhia in the district such per cent, of the seats shall, by the order of the Collector, be reserved for the member of S.C. and S.T. as in the percentage of S.C. and S.T. in the total population of the district. This number shall be worked out to the nearest integer and the Gram Panchayat so reserved shall be those Gram Panchayat which have relatively higher percentage of such Scheduled Caste and Scheduled Tribes population in the district.
(b) The data of the last census shall be deemed as the basis for computation of population for fixation of percentage for reservation of seats.
(c) No election/co-option of Mukhia and the members of the Executive Committee shall be invalid on the ground of reservation resulting from the change in the population on account of alteration in the local limits of the jurisdiction of any Gram Panchayat.
(d) On recommendation of the Panchayat Samiti or on the recommendation of the Block Development Committee if there is no Panchayat Samiti, the Collector may, having regard to the provisions of Section 79 and the proviso to Clause (iii) of Sub-section (1) of Section 11 as the case may be, nominate Mukhia and eight members of the Executive Committee for the newly constituted Gram Panchayat whose terms of office shall expire on the date of taking oath of the elected Mukhia.
(e) If a member of Parliament/ State Legislature is elected to the post of Mukhia, or if after being elected as Mukhia subsequently is elected or nominated to the post of member of Parliament/State Legislature, then he shall have option to resign from any one of the posts, failing which after 15 days he will cease to function as Mukhia."
The new provisos to Section 10 provided for reservation of office of Mukhia, in a district, for members of Scheduled Castes and Scheduled Tribes. The percentage of reservation was to commensurate with the percentage of Scheduled Castes and Scheduled Tribes members in the total population of the district. For that purpose proviso (b) provided that the last census shall be deemed as the basis for computation of population for fixation of percentage for reservation of seats. Clause (c) placed an embargo upon challenge to election/co-option of Mukhia and the members of the Executive Committee on the basis of reservation resulting from the change in the population, on account of alteration in the local bounds of the jurisdiction of any Gram Panchayat. Proviso (d) provided for nomination of Mukhia and members of the Executive Committee. Clause (e) gave option to a member of Parliament/ State Legislature elected to the post of Mukhia to resign from any one of the posts failing which after fifteen days he would cause to function as Mukhia.
14. The vires of the five clauses in the amended Section 10 was challenged before this Court. The matter was considered by a Full Bench comprised of Sandhawalia, C.J., L. M. Sharma, J. (as he then was) and B. P. Sinha, J.
The main thrust of the challenge was to the provisions for reservation of the sole post of Mukhia in any Gram Panchayat as laid down in Proviso (a). For various reasons the Full Bench struck down the provisos to Section 10 of the Act. The Full Bench held that the provisos to Section 10 were violative of Articles 14 and 15 of the Constitution. Sandhawalia, C.J. observed in paragraph 34 of the judgment as follows : --
"A reservation in favour of one clause thus necessarily involves a deviation from the rule of equality and merit and a discrimination against the rest of the citizenry. Consequently to my mind it is untenable to hold that Article 15(1) would permit discrimination in favour of any person or class on the prohibited grounds even though it in terms lays down that no such discrimination can be made against any citizen. Though couched in terms negative Article 15(1) has both a negative and positive content as well, to my mind, it prohibits both discrimination against any citizen and equally one in favour of any citizen on the specified prohibited grounds.
At paragraph 87 the final conclusion of Sandhawalia, C.J. was that the answer to question No. 5 was rendered in the affirmative and that the reservation of the solitary post of Mukhia in the self-contained unit of a Panchayat exclusively for Scheduled Castes and Scheduled Tribes was patently excessive, unreasonable and violative of the rule of equality. And what was question No. 5 formulated by the Bench that was mentioned at paragraph 1 of the Judgment as follows:---
"5. Assuming entirely for the sake of argument that Article 15(4) is applicable, then would the reservation of the solitary post of a Mukhia (in the self-contained unit of a Panchayat) exclusively for Scheduled Castes and Scheduled Tribes be excessive, unreasonable and violative of rule of equality."
In that background the bench struck down the whole of Sections 2 and 3 of the amending ordinance as being violative and patently infraction of Article 14. Learned counsel for the petitioners contended that the whole of Sections 2 and 3 of the amending ordinance having been struck down all the provision including proviso (d) to Section 10 was also obliterated and, therefore, the power to nominate Mukhia for a new Gram Panchayat was no more part of Statute. The submission is fallacious for various reason.
15. Learned counsel for the petitioners did not dispute that what was struck down was only the provisos and not the main section. If the submission based upon the decision of Janardan Paswan (supra) is to be accepted without any reservation then the main provision of Section 10 namely the provision for election of a Mukhia must also be held to be non-existent. This would create an anomalous situation. There would be no provision for election of a Mukhia. That would be the consequence if the submission of the counsel for the petitioners is accepted. They, however, were candid in conceding that the main section providing for an election of a Mukhia was still on the Statute Book. The main section thus subsists despite the decision of the Full Bench. If the main section remains we have failed to see why Proviso (d) which was a proviso of the Statute enacted in 1978 would not also be held to be still existent. It is patent that whatever was pre-existing in the old Act would survive. By that process of reasoning the old Section 10 as a whole would be very much on the Statute Book. On that basis the Collector could nominate Mukhia and members of the Executive Committee.
16. The matter may be examined from yet another angle. Section 2 of the amending ordinance of 1987 brought about a substitution of the old Section 10. The Full Bench of this court struck down the amendment as being violative of Articles 14 and 15 of the Constitution. The result would be revival of the old Section 10 and its proviso.
17. We must now to consider what was the impact of the amending Sections 2 and 3, Article 13 of the Constitution reads as follows:--
"Laws inconsistent with or in derogation of the fundamental rights -- (1 j All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void."
From the above, it must be appreciated that the amending provisions of the amending ordinance being inconsistent with the provisions of the Constitution as held by the Full Bench was wholly void. It was void in the sense that the State had no jurisdiction to enact that ordinance in contravention of the provisions of the Constitution. If an enactment is void, it must be held that it never came into being, the Ordinance was still born. Having never come into being, the original Section 10 with its provisos must be deemed to be good law and effective at all times, even now.
18. There is a difference between repeal of an enactment and an enactment declared void by judgment. In Behram Khurshid Pesikaka v. State of Bombay, AIR 1955 SC 123 : 1955 Cri LJ 215, at paragraph 49 C.J. Mahajan laid down that the part of the section which had been declared void had no force so far as citizens were concerned and it cannot be recognised as valid, law for determining the rights of citizens. That was a case relating to Bombay Prohibition Act (25 of 1949). The Constitutional validity of the Act was challenged on various counts.
The attack failed. The Act was sustained but a few provisions were declared void. Part of Section 13 Clause (b) so far as it affected the consumption and use of liquid medicinal or toilet preparation containing Alcohol were held invalid. Section 13(b) prohibited the use of consumption of liquor without a permit. Section 66(b) which was the penal section, provided that whoever in contravention of the provisions of the Act, consumed or used any intoxicant would on conviction be punished. The appellant was charged under Section 66(b) of the Act for having used or consumed liquor the use of which had been prohibited by Section 13(b). In the State of Bombay v. F. N. Balsara, AIR 1951 SC 318 : 52 Cri LJ 215, commonly referred to as Balsara case, Section 13 (b) was declared invalid. Though it stood intact as indicated in respect of Prohibited liquor. The question in the case of Behram Khurshid Pesikaka (supra) was what was the effect of partial declaration of invalidity of Section 13 (b) in a case where a citizen was prosecuted under Section 66(b) for committing the breach of the provision of the Section. The Supreme Court laid down that, that part of the section which had been declared void had no legal force.
19. The scope of the effect of Article 13(1) fell for consideration once again in Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781. At paragraph 8 S. R. Das, Acting C..I. held that Article 13(1) had the effect of nullifying or rendering the existing. law which had become inconsistent with Article 19(1)(g) tread with Clause (VI) as it then stood, ineffectual, nugatory and devoid of any legal force or binding effect. It would be apt to quote the law laid down by Das Acting C.J. at paragraph 9 page 783 which reads as follows :--
"The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right of a citizen under Article 19(1)(g)."
20. The decision in the case of Behram Khurshid Pesikaka (supra) was seriously considered once against by the Supreme Court in State of Gujarat v. Sri Ambica Mills Ltd., 1974 SC 1300, At paragraph 30 Mathew, J. accepted the view of Mahajan, C.J. that there was no real distinction between a law void for lack of legislative power and law void for violating the constitutional fetter or violative of legislative power. At paragraph 37, Mathew, J. observed that the law was still born so far as persons entities or denomination whose fundamental rights had been taken away or abridged.
21. In Jagannath v. Authorised Officers, Land Reforms, 1972 SC 425, the Supreme Court held that a post constitution Act which had been struck down for violating the fundamental rights conferred under Part 3 was still born.
22. The position is different in regard to a law which has been repealed. Unless there is anything to the contrary, a Statute which has been repealed is completely effaced from the Statute Book. It may be revived once again if the legislature so legislates but in the absence of any revival Statute a law repealed is dead for all times. In State of Maharashtra v. C. P. Central Provinces Manganese Ore. Co. Ltd., AIR 1977 SC 879 : 1977 Tax LR 1861, it was laid down at paragraph that the repeal and a displacement of a legislative provision by a fresh enactment can only take place after that elaborate procedure had been followed in toto. The effect of a repealing shall be to obliterate. There may be situations where the effect or actions taken under a repealing Statute may survive but that is only in relation to the procedure. In the amending Ordinance (Ordinance No. 3 of 1987) 1987 before us there was no repealing section. It did not state that the original Act or any of its provisions would stand repealed.
23. The position in the instant case is similar to the one which fell for consideration in State of Maharashtra v. C. P. Manganese Ore (supra). The position in that case was that the law in regard to imposition of sales tax had been amended but the amendment had not received the assent of the Governor General under Section 107 of the Govt. of India Act. Question arose what was the effect of the amendment made without the assent of the Governor General. The Bombay High Court held that the previous law would not be deemed to have been amended and it would remain very much in force. The submission on behalf of the State was that since the substitution of the old law by new one had two facets: one of repealing the earlier law and another of introducing a new one and since the assent of the Governor General had not been obtained for the new law, the new law remained ineffective but the repeal of the old law would remain very much valid. The submission was squarely repealed by the Supreme Court. In that regard Beg, J. as he then was, laid down as follows (at page SC 886; AIR 1977) :--
"Although, there is no corresponding provision in our General Clauses Acts, yet, it shows that the mere use of words denoting a substitution does not ipso facto or automatically repeal a provision until the provision which is to take its place becomes legally effective. We have, as explained above, reached the same conclusion by considering the ordinary and natural meaning of the term "substitution" when it occurs without anything else in the language used or in the context of it or in the surrounding facts and circumstances to lead to another inference. It means, ordinarily, that unless the substituted provision is there to take it place, in law and in effect, the pre-existing provision continues. There is no question of a "revival".
At paragraph 23 Beg, J. held approving the decision of the Bombay High Court that the process for substitution necessarily implied both repeal and reenactment.' The position in the instant case is that there is no repeal but the ordinance, so far as is relevant, was struck down as being violative of Articles 14 and 15. That being so, the amending ordinance must be held never to have come into being. Since the amending ordinance never came into being, the original Section 10 with its proviso remained intact. The striking down of the provision of the ordinance knelled the end of the eclipse. In Brij Dhukhan Kalwar v. S. D. O. Siwan, AIR 1955 Patna, page I at paragraph 5 Narayan J. referred to a decision of the Supreme Court in Norton v. Shelby County, (1985) 118 US 425 A observed as follows (at page 186 (SC) US) :--
"An unconstitutional Act is not law. It confers no rights. It imposes no duties, it affords no protection. It creates no office. It in a legal contemplation, is inoperative as though'it had never passed."
On the basis of the above authority, I have not the slightest hesitation in holding that the provisos to the substituted Section 10 having been declared ultra vires by the Full Bench of this Court in case of Janardan Paswan (supra) those provisos must be beld never to have. existed. It follows therefrom that the original Section 10 with its proviso, as amended in 1978, must be deemed to have always held the field. The present application must be decided on the dictum laid down by the Supreme Court in the case of State of Maharashtra v. C. P. Manganese Ore (supra). The Collector therefore, had the power to act in terms of the proviso in relation to new Gram Panchayat. The second question posed at the bar is that proviso to Section 10 as amended in 1978 is very much on the Statute Book. The stepping down of Section 2 of amending Ordinance of 1987 did not efface the power of nomination vested in the Collector.
24. Having held that the Collector had the power to nominate Mukhia and members of the Executive Committee, the next question is in what circumstances the Collector can exercise that power. That brings us to the fourth question agitated at the bar.
25. Counsel for the State as well as private party conceded that the power of nomination to be exercised by the Collector was effective only in regard to new Gram Pancha-yats, not to old established gram panchayats. That is clear from the proviso itself which lays down that "The Collector may nominate Mukhia for the newly constituted Panchayat" would an existing Gram Panchayat split into two or three panchayats be a new Panchayat ? Question is, if areas'have been taken out of, for instance from panchayat X, would Panchayat X be considered a newly established Gram Panchayat or would it be an old Panchayat. If it is taken to be a newly established Panchayat, the Collector would have jurisdiction to nominate Mukhia and members of the Executive Committee in terms of the proviso to Section 10 but if it is taken to be an old Panchayat the Collector cannot exercise that power. A Division Bench of this Court in Bhola Chaudhary v. The State of Bihar, 1988 PLJR 692, has held that it. would be an old Gram Panchayat. The present Full Bench was constituted to consider the correctness of that decision.
26. Before referring to that decision, it would be useful to refer to some of the provisions of the Panchayat Raj Act to appreciate the correct legal position. A Gram Panchayat is establisdhed by issuance of a notification in terms of Section 3 of the Act. The notification must specify the name and local limits of the jurisdiction of the Gram Panchayat. The local limits of the jurisdiction of a Gram Panchayat may be varied by including areas or by excluding therefrom any village or part of the village. Every adult person residing within a panchayat is a member of a Gram Panchayat. The Act conceives of a Judicial wing and an Executive wing of a Panchayat. The Judicial wing is known as Gram Kutchery. The Executive Wing consists of a Mukhia at the head, elected in terms of Section 10 and eight members of the Executive Committee. Four of them to be elected by the Gram Panchayat and four to be appointed by the Mukhia. The nominations are to be effected in order to give due representation to Scheduled Castes and Scheduled Tribes, females and such other Clases as may be prescribed. One of the members of the Executive Committee is to Be elected Up-Mukhiain terms of Section 11(A). The Mukhia may delegate his powers to the Up-Mukhia, of course with the approval of the Executive Committee. The Executive Committee shall elect one of their number to act as Mukhia, whose tenure of office shall not exceed six months from the date of election. While the office of Mukhia is vacant the Up-Mukhia is to perform all the duties and exercise the powers of Mukhia. Section 13 deals with the removal of Mukhia by majority of votes. The Government also has the power to remove a Mukhia for misconduct, incapacity or neglect of duties. This the Government can do only on the recommendation of the prescribed authority. Section I3(A) lays down that if the Mukhia is unable to complete his full term of office by reason of resignation, death or otherwise, the vacancy shall be filled up by election or appointment in the manner provided in Sections 10 and 11 and the persons'so elected or appointed shall fill such vacancy for the unexpired portion of the term for which such Mukhia and members of the Executive Committee would continue in office.
27. Let us come to grips with the crucial question whether on the publication of a notification altering the jurisdiction of a Gram Panchayat in terms of Section 3(3), the Gram Panchayats are to be deemed new Gram Panchayats or are to be treated as old Gram Panchayats. For that purpose the relevant provisions are thus contained in Section 3. It reads as follows :--
"3. Establishment and constitution of a Gram Panchayat -- (1) For every village or part of different villages, the Government may, by notification, establish a Gram Panchayat :
Provided that the Government may, if it thinks fit, establish one Gram Panchayat for a group of contiguous villages or more than one Gram Panchayat in a big village consisting of several Tolas.
(2) The Government shall specify the name and the local limits of the jurisdiction of Gram Panchayat in the notification mentioned in Sub-section (1).
(3) The Government may, by notification in the official Gazette, alter the local limits of the jurisdiction of any Gram Panchayat by including therein or excluding therefrom, any . village or part of a village and also alter the name of such Gram Panchayat:
Provided that before making any alterations in the local limits of the jurisdiction of any Gram Panchayat, the Government shall in the prescribed manner, ascertain the voice of the people of the area effected by such alteration.
(4) Upon the issue of a notification under Sub-section (3), the Gram Panchayat shall be deemed to have been established under subsection (1) with its local limits so altered."
From the above, it will be seen that the local limits of the jurisdiction of any Gram Panchayat may be altered by excluding or by inclusion of areas. If that has been done by issuance of a notification in terms of Section 3(3) Sub-section (4) provides that a Gram Panchayat in terms of Section 3 (3) shall be deemed to be a Gram Panchayat established in terms of Section 3(1). It admits of no doubt that Section 3 (1) deals with establishment of a new Gram Panchayat. Thereafter if a notification has been issued in terms of Section 3(3), Sub-section (4) provides that the altered Gram Panchayat shall be deemed to be a Gram Panchayat in terms of Section 3 (1) i.e. to say that the altered Gram Panchayat must be deemed to be a newly established Gram Panchayat. Ordinary common sense would impel us to take the view that if certain areas have been excluded from an existing Gram Panchayat, the existing Gram Panchayat would continue to remain operative as an old Gram Panchayat but the excluded areas which constitute a Gram Panchayat -- a breakaway Gram Panchayat would be new. But there is something like legal fiction, ordinarily the old Gram Panchayat would remain old, but for the deeming provision in Section 3(4) which lays down that the Gram Panchayats shall be deemed to have been established under Sub-section (1). Sub-section (4) creates a legal fiction. If Sub-section (4) had not been there, I would not have the slightest hesitation, in holding that the old Gram Panchayat would continue as an old Gram Panchayat. But I am unable to appreciate how Sub-section (4) can be ignored. The effect of a deeming provision is well known. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 Appeal Cases, 109 Lord Asquith laid down as follows :--
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it."
The proposition is so well-established that it does not require much authority. The same proposition was laid down by Mahajan J. in State of Bombay v. Pandurang Vinayak, AIR 19S3 SC 244 : (1953 Cr LJ 1094) where his Lordship laid down as follows (at page SC 246; AIR 1953) :--
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be earned to its logical conclusion (Vide Lord Justice James in Ex Parte Walton; In re Levy, 1981 17 Ch D 746 at p. 756(A)). If the purpose of the statutory fiction mentioned in Section 15 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC 109 (B), Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as follows :--
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it....... the statute says that you must imagine a certain state of afairs; it does not say that having done-so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The Corollary thus of declaring the provisions of Section 25, Bombay General Clauses Act, applicable to the repeal of the ordinance "and of deeming that ordinance and enactment is that wherever the word "ordinance" occurs in the notification that word has to be read as an enactment."
Nearer home the same proposition was laid down by N. P. Singh J. in Ram Naresh Rai v. The State of Bihar, 1979 AIR Patna 130 (Full Bench) at paragraph 10. The deeming provision, therefore, cannot be ignored. In terms of Sub-section (3) of Section 3 every Gram Panchayat in respect of which notification has been issued under Sub-section (3) has to be held to be a new Gram Panchayat. It is axiomatic therefore that the District Magistrate would have the jurisdiction to nominate a Mukhia in terms of the proviso to Section 10 of the Act.
28. A Division Bench of this Court has taken a contrary view of the matter in Bhola Chaudhary v. The State of Bihar, 1988 PLJR 692. That case has occasioned reference of these applications to the Full Bench. In this case the prayer was for issuance of a writ of quo warranto or any appropriate direction for removing the Mukhia of Dhobani Ramauli Gram Panchayat. That Gram Pan-chayat, which had been established in June, 1960, initially consisted of seven villages. In the election held in June, 1978 respondent No. 3 of that petition has been elected Mukhia. In course of time he was also elected pramukh of the concerned Panchayat Samiti. In October, 1985, the Government issued a notification altering the territorial area and local limits of the said Gram Panchayat by taking out five villages out of the seven original villages which constituted the Gram Panchayat. Dhobani-Ramauli Gram Panchayat thereafter consisted of only two vil-lages-Dhobani and Ramauli. Another notification was issued notifying the setting up of Sisai Gram Panchayat consisting of five villages which were originally part of Dhobani-Ramauli Gram Panchayat. Consequent upon the notification issued in terms of Section 3(3) of Panchayat Raj Act, two Gram Panchayats came into existence -- one was Dhobani-Ramauli Gram Panchayat and other was Sisai Gram Panchayat. Consequent upon the notifications the erstwhile Mukhia ceased to be member of Dhobani Ramauli Gram Panchayat as his village formed part of Sasai Gram Panchayat but he continued to function as Mukhia of Dhobani Ramauli Gram Panchayat. His functioning as such was challenged by the application for issuance of a writ of quo warranto and for a direction for removal of the Mukhia. The question which fell for consideration in that application was whether Dhobani Ramauli Gram Panchayat was a newly established Gram Panchayat or whether it was an old Gram Panchayat. If it, was held to be a newly established Gram Panchayat, the erstwhile Mukhia -- the respondent of that application, would have no jurisdiction to function as Mukhia of Dhobani Ramauli Gram Panchayat and the Collector would have to nominate a Mukhia in terms of proviso to Section 10. In that case at paragraph 7 Ram Nandan Prasad, J. with S. Ali Ahmad J. observed that there was no doubt that if the altered Dhobani Ramaui Gram Panchayat had to be regarded as a newly established Gram Panchayat the contention of the petitioner of the application had to be upheld, The contention that it was newly established Gram Panchayat was rejected. The reasons for holding that it was not a newly established Gram Panchayat were as follows (at page 695; 1988 PLJR) :--
1. If the legislature intended that any alteration would lead to dissolution of the Gram Panchayat, ,this could have been expressly and specifically mentioned in the section.
2. Sub-section (2) of Section 11 lays down that the term of the Mukhia shall be for five years from the date of his election unless determined under Section 13 or Section 79B. In the absence of any provisions in Section 11(2) or Section 79 B cutting short the tenure of a Mukhia, the Mukhia would continue to hold office for five years and therefore the Gram Panchayat must be held lobe a continuing one.
3. Section 3 B does not provide for mid term election in the Gram Panchayat from which some territory had been deleted and therefore pre constitution of the Gram Panchayat was unalterable. It must follow therefore that despite the issuance of notification under Section 3 (3) of the Act, the Gram Panchayat from which a new Gram Panchayat had been created would be an old Gram Panchayat.
4. By altering the jurisdiction of Gram Panchayat the areas constituting the old Gram Panchayat would not be unrepresented because the Mukhia prior to alteration of the limits represented the entire old Gram Panchayat.
5. The old existing unit does not vanish or become non-existent but it retains its identity with certain changes. This would be the common sense approach to the problem. In the notification issued in that case it had been mentioned that villages mentioned in column 5 of the notification would be taken out from Dhobani Ramauli Gram Panchayat and would be part of Sisai Gram Panchayat, and remaining village would continue to be part of original Gram Panchayat. In the notification it was said "Sisai Gram Purv ki bhanti Mul Panchayat ke sath rehenge."
6. The name of the Gram Panchayat remained unaltered. The notification thus laid down that the old Dhobani-Ramauli Gram Panchayat had merely undergone some alteration or amendment with regard to territorial jurisdiction and that there was no basis for holding that the notification would have the implication of establishing a new Gram Panchayat.
The above were the reasons for holding that Dhobani Ramauli Gram Panchayat continued as an old Gram Panchayat and it could not be held to be a newly established Gram Panchayat, Let us examine the weight of the reasons set out in support of the decision in the case of Bhola Chaudhary (supra).
29. The first reason for holding that Dhobani-Ramauli Gram Panchayat was not a newly established Gram Panchayat was that if the legislature intended that the alterations would lead to dissolution of the Gram Panchayat and establishment of new Panchayat this could have been expressly and specifically mentioned in the section. In my view, Sub-section (4) of Section 3 is a complete answer to this line of reasoning. The legislature has expressly said so by inserting the deeming provision. By a notification issued in terms of Section 3(3) altering the limits of a Gram Panchayat, the notification would be deemed to be in terms of Section 3(1), the legislature has said clearly that the Gram Panchayat would be a new Gram Panchayat. By use of the word "deemed to have been established" under sub-sec. (1) with its local limits so altered is clear indication of the intention of the legislature to create new panchayat. There is no doubt that ordinarily it would not be a newly established Gram Panchayat but we are bidden to give effect to the deeming provision. We are bidden to take it as a newly established Gram Panchayat. I would only like to remind the weight of a deeming provision which I have discussed earlier. In introducing the legal fiction by the deeming phrase the legislature was doing nothing else but was giving out its intention to dissolve the old Gram Panchayat and to establish a new Gram Panchayat. That is the mode by Which the legislature could express itself. It did so in no uncertain terms. It is, therefore, fallacious to say that the legislature did not expressly set out that the altered Gram Panchayat would be a newly established Gram Panchayat. A different conclusion could be arrived at only if Section 3(4) is obliterated. That we are not permitted to do. The first ground, therefore, for holding that it was not a newly established Gram Panchayal is untenable.
30. The second reasoning for holding that it was not a newly established Gram Panchayat was that Section 11(2) set out the tenure of the office of Mukhia and the elected representative for five years. It is true that there is no reference to the deeming provision in Section 3(4), while enacting Section 11(2) and Section 79B but I would once again like to restate the effect of the deeming provision. Lord Asquith in the East End Dwellings Co. Ltd. case (supra) laid down that if an imaginary state of affairs has to be treated as real, the Court must "also imagine as real" the Consequences and incidents which, must inevitably have flowed from the deeming provision. In terms of the above dictum there can be no escape from the position that the tenure of a Mukhia or any of the office bearers of a Gram Panchayat will be cut short, on the issuance of the notification in terms of Section 3(3) of the Act. That would be the consequence of a newly established Gram Panchayat. The tenure of Mukhia remains valid only so long as the Gram Panchayat exists and unless the old Gram Panchayat is dissolved the question of tenure of the elected Mukhia projecting itself beyond the existence of the old Gram Panchayat would not arise. By the same process of reasoning the non-mention of the tenure of a Mukhia being cut short not having been mentioned in Section 79B consequent upon establishment of a new Gram Panchayat, also is of no consequence.
If the old Gram Panchayat has been dissolved and a new Gram Panchayat has been set up the effect of Section 3(4) must be deemed to have been engrafted in Section 79B as well. That is the only process by which the deeming fiction can be given full effect to. That is the consequence which inevitably flows from the effect of the deeming provision. Mahanaj J. in the case of State of Bombay v. Pandurang Vinayak (supra) laid down that "full effect must be given to the statutory fiction and it should, be carried to its logical conclusion." The "full effect" and the "logical conclusion" can be given in the instant case only by treating Section 3(4) as having been engrafted in all the provisions of the Panchayat Raj Act. It must be deemed to have been engrafted in Section 11(2) as well as in Section 79A and B. If Section 3(4) has not been enacted in 1978 the rationale expounded by Ram Nandan Prasad J. would be unexceptionable but Section 3(4) bids us to treat it as having been engrafted in every part and parcel of Panchayat Raj Act. In my view, the statute specifically and unequivocally expressed its intention to create a new Panchayat.
31. At this stage, I would like to dispose of another submission advanced by Mr. Bindeshwary Chaudhary. It was contended that there was no provision in the Panchayat Raj Act to dissolve the Executive Committee which includes the Mukhia except in terms of Section 79A. The creation of a new Gram Panchayat is not mentioned in Section 79A and, therefore, in the absence of dissolution of an old Gram Panchayat a new Gram Panchayat cannot be established because it would lead to existence of two Panchayats for the same villages. The submission is fallacious for the reason discussed by me above namely that the deeming clause under Section 3(4) must be deemed to have been engrafted in Section 79A as well. The situation created by issuance of a notification under Section 3(3) read with Section 3(4) must be taken to be another provision for dissolution of a Gram Panchayat. The process of dissolution and establishment really coalesce into one process. It is, therefore, manifestly erroneous to say that there is no power of dissolution of a Gram Panchayat. The dissolution is implicit in the creation of a new Panchayat.
32. The third ground spelt out by Ram Nandan Prasad, J. was that Section 3B did not provide for holding mid-term election for a Gram Panchayat from which some territory has been delinked. In my view such a provision Section 3B is not called for after a new Gram Panchayat has been established. Consequent upon alteration of the boundary of a Gram Panchayat the process for setting up or Constitution of new Gram Panchayat will be set in motion. Section 3B will thus become irrelevant, after issuance of the notification in terms of Section 3(3). The Executive Committee will be constituted afresh in terms of Section 11 and other cognate provisions. There would be no situation for holding of raid-term election. The whole process of setting up or Constitution of Gram Panchayat will be gone through afresh. This ground also, therefore, is irrelevant for the conclusion arrived at in that decision.
33. The expression "SESH GRAM PURVA KI BHANTI MUL PANCHAYAT KE SATH RAHENGE" cannot take away the effect of Section 3(4). It is well known that a notification which is an executive fiat, cannot override legislative dictate. Further, the reference to other village in the notification only meant that Dhobani Ramauli Gram Panchayat would consist of only two villages Dhobani and Ramauli. The expression used in the notification cannot project the old Gram Panchayat. The fact that the name Dhobani Ramauli Gram Panchayat persisted even after the alteration of the boundary cannot imply that Dhobani Ramauli was an old Gram Panchayat. Every new Gram Panchayat has to be given a name. The new name must be held to be Dhobani Ramauli. Therefore, only because the names were identical the Gram Panchayat cannot be held to be an old Gram Panchayat. If there can be no escape from the deeming provision, it must be held to be a new Gram Panchayat. The notification cannot operate in derogation of Section 3(4). The notification can be no pointer for holding that it was an old Gram Panchayat. If a notification has been issued under Section 3(3) of the Act, any notification or any memo issued by Collector cannot alter the legal position. In my view, the legislature clearly contemplated setting up of a new Gram Panchayat.
34. We have considerable difficulty in accepting the verdict of the Division Bench at paragraph 10 rejecting the argument advanced on behalf of the petitioner of that case. It is obvious that with the alteration in the limits of a Gram Panchayat by a notification issued in terms of Section 3(3) all the incidents of a new Panchayat will come into play. The content ascribed to Section 3(4) in the case of Bhola Chaudhary (supra) is unsupportable. The effect of Section 3(4) cannot be ignored. If full effect thereto has to be given, as it must be, the natural inference must be that the altered Gram Panchayat is a new Gram Panchayat. In my view, therefore, the decision in Bhola Chaudhary v. State of Bihar (supra) was not correctly rendered. We squarely overrule it.
35. Mr. Pramod Kumar Sinha, learned counsel for the petitioner in C.W.J.C. No. 6437/89, contended that the proviso to Section 10 creates an anomalous situation in the sense that the District Magistrate can constitute the Executive Wing of the Gram Panchayat by nominating a Mukhia and some members of the Executive Committee but there will not be any Sarpanch. He contended that that would be so because there is no power to nominate a Sarpanch and since a Gram Panchayat without a Gram Kutchery is inconceivable the provision for nomination of Mukhia was annihilatory for the creation of a new Gram Panchayat. The submission is fallacious. It is true that the Collector has not been clothed with the power to nominate a Sarpanch but that cannot vitiate the establishment and Constitution of a Gram Panchayat and its Executive Committee. A Gram Kutchery always comes into being after the Executive Committee has been set up/That will be obvious if we read the provision of Chapter VII of the Act which prescribes the modality of Constitution of a Gram Kutchery. Every Gram Kutchery, in terms of Section 49, has to have nine panches including the Sarpanch. Out of these four panches are to be elected by the members of the Gram Panchayat and four are to be nominated by ajoint meeting of the Sarpanch, the elected panches and the elected members of the Executive Committee. Thus there cannot be nomination of the half the number of the panches unless the Executive Committee, the elected panches and Sarpanch sit together. The Constitution of the Executive Committee will always precede Constitution of Gram Kutchery. A Gram Kutchery must, therefore, come into being only after the Executive Committee has been constituted: Until the Executive Committee with Mukhia as its head has been constituted, the Constitution of the Gram Kutchery must remain in abeyance. The statute, therefore, foresees a gap between the Constitution of the Executive Committee and the Constitution of Gram Kutchery. There is no provision in the Act for a general election for all the panches. In that view of the matter, every Gram Panchayat will have to exist without Gram Kutchery for a time. The absence of power to nominate a Sarpanch or the absence of any provision in regard to Gram Kutchery cannot vitiate the power of the District Magistrate to nominate Mukhia and members of the Executive Committee in terms of the proviso to Section 10.
36. We now take up point No. (v) formulated in paragraph 2 of this judgment. Mr. Pramod Kumar Sinha contended that in the matter of nomination of Mukhia, the District Magistrate's power are unguided and un-canalised and therefore it conferred arbitrary powers. Arbitrariness being negation of equality of law, the provision must be struck down as being violative of the equality clause enshrined in Article 14. I regret the submission has only got to be stated to be rejected. Sufficient guideline has been provided in the proviso. The District Magistrate has not been given a free hand in the matter of nomination. The first restriction placed upon him is that he will nominate on the recommendation of a Panchayat Samiti or Block Development Committee. The second check is that he shall nominate having regard to the provision of Section 79. The third check is that he has to nominate with an eye to the provisions of C1.3 of Sub-section (1) of Section 11. The provision lays down that in the matter of nomination of four members of the Executive Committee due representation to Scheduled Castes, Scheduled Tribes, females and such other classes as may be prescribed shall be kept in mind. Thus there are three restrictions upon the District Magistrate. He has to act within those guide banks. Those must be held to be sufficient guidelines for the District Magistrate to act in the matter of nomination of members of the Executive Committee. The submission that the proviso to Section 10 is violative of Article 4 of the Constitution as being arbitrary without guidelines is accordingly rejected.
37. Mr. Bindeshwari Chaudhary also contended that within the framework of the Act, Section 3(4) was redundant. I regret I see no good reason to hold that it is redundant. The legislature had purposely enacted it to create a legal fiction. It is not within the power of a court to say that it is redundant. 1 have amply discussed earlier the vires of the Act and the way they get effected by the deeming provision, A deeming provision is not an accident. It is always deliberate, as it implies that the legislature is bringing into being something which it is not. I am unable to find any good reason for holding Section 3(4) to be redundant. This submission also urged on behalf of the petitioner, must be squarely rejected.
38. It was also contended that Section 10 could not co-exist with Section 3B as Section 10 provided a scope for continuation of a Ad Hoc arrangement Ad Infiriitum. It was contended that the proviso to Section 10 would render Section 3B nugatory. The submission has no force. Proviso to Section 10 only deals with a temporary situation. The nominated Mukhia and the Executive Committee will be there only for the interregnum between the creation of a new Gram Panchayat and the next regular election of the members of the Executive Committee. As to the question in regard to the duration of the interregnum it must be presumed that the time lag will be reasonable. The nominated Mukhia cannot exist without any limitation upon his tenure. After the nominations have been effect, within reasonable time, the State Government is expected to act in terms of Section 3B by calling upon the Panchayats to elect its Mukhia and Executive Committee. The submission that since the proviso does set the time limit for the tenure of the nominated Mukhia it may remain Ad finitum and on that score the proviso to Section 10 clothes the Collector with arbitrary powers has no substance. Merely because it has the seeds of misuse of power the provision could not be held to be ultra vires the Constitution. For that matter general elections to the Gram Panchayats have not been held since 1978 but no one has ever thought of suggesting that the Bihar Panchayat Raj Act is ultra vires the Constitution.
39. Having dealt with the common issues raised in the several writ applications. I shall now take up each of the petitions separately and deal with the separate questions raised in them.
C.W.J.C. No. 6340 of 1989
40. This application relates to Hansi-Malahi Gram Panchayat. Originally it consisted of sixteen villages. In 1985 the number of villages constituting the Gram Panchayat was altered. On 5th November, 1985, a notification was issued in terms of Section 3(1) creating Raghunathpur-Imadpur Panchayat consisting of villages Raghunathpur, Imadpur and Mianbairo which were previously part of Hansi-Malahi Gram Panchayat. Simultaneously on the same day another notification was issued in term of Section 3(3) of the Act creating Hansi-Malahi Gram Panchayat with thirteen villages. The name of Hansi Malahi Gram Panchayat continued. The notification in respect of Raghunathpur. Imadpur is An-nexure 2 to this application and notification Under Section 3(3) in relation to Hansi-Malahi Gram Panchayat is annexure 3 to this application. By letter/Circular of the 30th June, 1980 (annexure 4) the Commissioner-cum-Secret-ary, Rural Development Department issued instruction to all District Magistrates to effect nominations in terms of Section 10 of the Act. Annexure 4/1 dated 8-7-1989 is a notice from the Block Development Officer to members of Lalganj Panchayat Samiti in regard to a meeting to be held on 18-7-1989, for nomination of Mukhia and members of the Executive Committee for Hansi-Malahi Gram Panchayat and eight other Gram Panchayats. The petitioner has prayed for quashing annexures 4 and 4/1. The petitioner is a resident of village Simra Khurd which forms part of the new Hansi-Malahi Gram Panchayat. he was elected up-Mukhia of the old Hansi-Malahi Gram Panchayat in December, 1978. The said Gram Panchayat forms part of Lalganj Panchayat Samiti. Ram Lakhan Rai had been elected Mukhia of that Gram Panchayat. Ram Lakhan Rai belonged to village Mianbairo which now is included in the new Gram Panchayat Raghunathpur-lmadpur Gram Panchayat created by annexure 2. After the issuance of notification (annexure 3) Ram Lakhan Rai the Mukhia ceased to be the Mukhia of Hansi-Malahi Gram Panchayat and, therefore, the petitioner, the Up-Mukhia, has been discharging the function of Mukhia of Hansi-Malahi Gram Panchayat. The process of nomination of Mukhias and members of the Executive Committee placed the petitioner, the up-Mukhia in jeopardy. Hence the application for quashing annex-ures 4 and 4/1 which would have the effect of annihilating empire of the petitioner, the Up-Mukhia. This application is pressed merely on the ground that the proviso to Section 10 was invalid, ultra vires and inoperative. For the reasons which 1 have already discussed earlier, the contentions urged on behalf of the petitioner in regard to the validity of proviso to Section 10 have already been rejected. There is, therefore, no merit in this application. This application, therefore, fails. The prayer of the petitioner to allow him to function as Mukhia of Hansi-Malahi Gram Panchayat as before is hereby rejected.
41. It appears that during the pendency of this application Lalganj Panchayat Samiti has recommended names for nomination of Mukhia. Recommendations having been made the Collector is bound to nominate a Mukhia and members of the Executive Committee for the Hansi Malahi Gram Panchayat. The prayer for quashing the resolution of the panchayat Samiti dated 18-7-1989 made in a supplementary application is accordingly rejected. The Collector will now proceed to nominate in terms ofthe proviso to Section 10 of the Act.
C.W.J.C. No. 6305 of 1989.
42. The petitioner in this application has moved this application as a Public Interest Litigation. He has prayed for issuance of a writ of mandamus commanding respondents Nos. I to 6 to immediately hold election of Mukhia of Kuhila Gram Panchayat. Respondent No. 7 Sri Radha Krishna is the Acting Mukhia "Karyakari Mukhia" of the said Gram Panchayat. Mathura Singh was the regular Mukhia who had been elected in 1978. He died on 26-6-1983. It has been averred that the election of Up-Mukhia of that Gram Panchayat had not been held. The result was, on the death of Mathura Singh, that there was neither Mukhia nor Up-Mukhia for the said Gram Panchayat. Consequently in terms of Section 11A Sub-section (2)(a) Sri Radha Krishna was elected Acting Mukhia by the members of the Executive Committee at a meeting held on 14-6-1989 whose tenure of office extended till the office of either Mukhia or Up-Mukhia was filed up. This never came to pass and till this date respondent No. 7 is the Acting Mukhia. In 1989 the Union Government decided to launch Jawahar Rojgar Yojna. In terms thereof certain grants were to be made to Mukhia for undertaking welfare works in the Gram Panchayat. The payment was to be made to Mukhia through bank account to be operated by the Mukhia. The account was opened for Kuhila Gram Panchayat but the respondent did not extend the benefit of Jawahar Rojgar Yojna to this Gram Panchayat on the ground that there was no Mukhia. In annexure 5 dated 20-5-1989, it is noted against Kuhila Gram Panchayat that there was no Mukhia. By annexure 6 it was ordered that the Block Development Officer be instructed to inform respondent No. 7 Radha Krishna that the Gram Panchayat account will not be deemed to be operative as his term of office namely six months from the date of election had expired long before.
43. The petitioner of this application has urged that there was no justification for denying the benefit of Jawahar Rojgar Yogna to Kuhila Gram Panchayat. It was contended that respondent No. 7 was as good as Mukhia as any Mukhia elected in terms of Sections 10 and 11 of the Act. The submission is ill founded. Sub-section (2)(a) of Section 11A reads as follows :--
"2(a) If the office of the Mukhiya and Up-Mukhia are vacant, the members of the Executive Committee, shall elect, in the prescribed manner, one of their number to be the acting Mukhiya, who shall act as Mukhiya for a period not exceeding six months with effect from the date of his election or unless anyone vacancy out of the two are filled, whichever is earlier."
From the above it will be seen that the tenure of office of an Acting Mukhia is six months with effect from the date of his election or until the vacancy in the office of either Mukhia or Up-Mukhia is filled up whichever of the two exigencies come to pass earlier shall determine the tenure of the Acting Mukhia. It is not in controversy that no election has been made for Kuhila Gram Panchayat up till now. In fact, the petitioner has averred that he filed representations and led demonstration for holding general election in the Gram Panchayat but they all came to naught. Sub- Section 2(a) quoted above lays down that the Acting Mukhia shall act as Mukhia. Section 2(a) clearly lays down two periods of officiation. The one is six months from the election and the other is next election. It also postulates that the earlier eventuality will determine the tenure of the acting Mukhia. No election having been held up till now the first eventuality was to expire on six months. That having expired and no election having been held the term of the Mukhia respondent No. 7 must be held to have been completed in terms of sub- Section 2(a). The District Magistrate was, therefore, justified in ordering stoppage of grant for Jawahar Rojgar Yojna through respondent No. 7. The application must, therefore, fail and is dismissed accordingly.
C.W.J.C. No. 6437 of 1989
44. In this application, the vires of Section 10 has been challenged. The petitioner has prayed for restraining the respondents from nominating a Mukhia for Khijirpur Jasparha and Gangapur Lakshmipur Naripur Gram Panchayat in terms of the proviso to Section 10. Prayer was also made that pending the final hearing of this application the meeting of the Panchayat Samiti which was to be held on 21-7-1989 as per annexure I be stayed. The Bench hearing the admission matter, did not stay the meeting but ordered on 27-7-89 that any nomination of Mukhia of the Gram Panchayat shall be subject to the result of this writ application. The contentions urged in this application in regard to the validity of Section 10 and the power of the District Magistrate to nominate Mukhia has already been considered and rejected in my earlier part of the judgment. There is thus, no merit in this application. If Mukhias have been nominated in pursuance of annexure 1, they shall enter upon their office. This application is dismissed accordingly.
C.W.J. C. No. 6790 of 1989
45. During the pendency of this application Fulena Singh and Satti Prasad Singh filed application to be impleaded as respondents to this application. No order was passed on the application but we have heard learned counsel for the intervenors as well. The intervention petition is held to have been allowed.
46. In this application eleven petitioners have prayed for quashing annexures 1, I A, IB, 4 and 4/1. Originally there were two Gram Panchayats by the name of Banni Temha and Banni Mahada within Cogari Police Station in the district of Khagaria which in 1955 formed part of Munger District. Subsequently in 1972 by annexure 3 a separate Gram Panchayat for village Banni was established. This Gram Panchayat was known by the name of Banni Gram Panchayat. Elections for the Banni Gram Panchayat were held in 1978. Respondent No. 9 was elected Mukhia of the said Gram Panchayat and respondent No. 10 was elected Sarpanch. Three notifications were issued on 6th Nov. 1986, in terms of Section 3(1) of the Bihar Panchayat Raj Act. By these notifications three Gram Panchayats were set up i.e. Mahada Banni, Temha Banni and Chaidha Banni. The villages within these Gram Panchayats are mentioned in Annexures 1, I/A and 1/B. Consequent upon issuance of annexures 1 series, the petitioners have challenged the setting up of new Gram Panchayats in terms of Section 3(3) read with Section 3(1) of the Panchayat Raj Act. After the issuance of annexure 1 series, the State Government directed by annexure 4 dated 22-11-1988, all District Magistrates to treat all the Gram Panchayats as newly established Gram Panchayats and proceed to nominate Mukhias and members of the Executive Committee in terms of the proviso to Section 10 of the Act. It appears that no action was taken in terms of annexure 4. A fresh circular was, therefore, issued on 30-6-1989 (annexure 4A). The petitioners being aggrieved by the issuance of annexures 4 and 4/ A, have moved this Court for quashing, them besides annexures 1 series.
47. No counter-affidavit has been filed in this case on behalf of the State possibly because no formal order of admission had been passed. The State had, therefore, no opportunity to file counter-affidavit. In the absence of opportunity to the State to file counter-affidavit, it is difficult to decide the points raised by the petitioner ex parte. The petitioners have averred in paragraph 11 of the petition that no notification has been issued in terms of Section 3(3) of the Act. If that be so, the Collector would have no power to act in terms of the proviso to Section 10 but as the State is entitled to notice and opportunity to file counter-affidavit, this application cannot be disposed of at the moment. This application is therefore delinked and it may be listed for hearing separately, in the light of this judgment. If the State fails to show issuance of notification in terms of Section 3(3) the old Gram Panchayat will be deemed to be continuing, but that matter will be disposed of by the Division Bench to consider hereafter.
C.W.J.C. No. 6587 of 1989
48. The original Gram Panchayat in this case was known as Bishunpura Belkunda Gram Panchayat. That has been split in to six Gram Panchayats namely. Bishunpura Gram Panchayat, Belkunda Gram Panchayat, Dumari Gram Panchayat, Manpur Gram Panchayat, Majhaulia Gram Panchayat and Rewari Gram Panchayat. The provision of law stated in annexure 1 series is Section 3 (2) of the Panchayat Raj Act. Notifications under Section 3(3) of the Act also having been issued, all the Gram Panchayats must be held to be newly established Gram Panchayats. The District Magistrate, therefore had full jurisdiction to act in terms of the proviso to Section 10 of the Panchayat Raj Act.
49. In this application besides the challenge to the power of the District Magistrate, the petitioners have also challenged the nomination by the District Magistrate. The petitioners in this application are voters of different Gram Panchayats. They claimed that a fresh election should have been ordered and that no nomination should have been effected in terms of the proviso to Section 10. The nominations have been challenged on the ground that they had been done in accordance with the procedure prescribed in the proviso to Section 10 as there was no Panchayat Samiti in existence. The Jalalpur Panchayat Samiti within which the Gram Panchayat in question existed had ceased to function in 1988. The Panchayat Samiti having ceased to function there was no Panchayat Samiti to recommend the names to the District Magistrate.
50. The submission is ill founded. The Panchayat Samiti is a perpetual body. Section 4(2) of the Panchayat Samiti and Zila Parishad Act provides that every Panchayat Samiti shall bear the name of the block for which it is constituted and be a body cor-porate having perpetual succession and common seal. The fact that a Samiti has perpetual succession means that it will always be in existence. There can be no question of a Samiti ceasing to function.
51. Now let us have a look at the constitution of the Panchayat Samiti to ascertain whether a Panchayat Samiti can cease to exist or cease to function at any point of time or not. Section 5 of the Panchayat Samiti and Zila Parishad Act (hereinafter called- the Samiti Act) lays down the categories of persons who shall be the members of the Panchayat Samiti. The first category is of Mukhias of all Gram Panchayats. The proviso to Section 11(3) of the Panchayat Raj Act lays down that a person shall hold the office of Mukhia for five years or until next election has been held. By that process all Mukhias elected in 1978 are still continuing as Mukhias. If for any reason the office of Mukhia becomes vacant then the Up-Mukhia of that Gram Panchayat will be member of the Panchayat Samiti. If there is neither Mukhia nor Up-Mukhia in a Gram Panchayat then the acting Mukhia elected in terms of Sub-section (29) of Section 11A will be member of the Panchayat Samiti. The Mukhias or the Up-Pramukhs will always be the members of the Panchayat Samiti. The second category of members of the Panchayat Samiti is that of members of the Vidhan Sabha and Lok Sabha whose constituency fall wholly or partially within the Panchayat Samiti of the Block. The fourth category is that of members of the Rajya Sabha and Vidhan Parishad of the State. There is yet another category of persons who constitute Panchayat Samiti. They are the co-opted members. They are co-opted by the Mukhias, the members of the Assembly, Parliament, Rajya Sabha and Vidhan Parishad. The co-opted members are of the following categories. They are:--
'(1)' Two persons whose experience in public life or administration or rural development would be beneficial to the Panchayat Samiti.
(2) Three female members provided that number of female members are not already members of the Panchayat Samiti.
(3) Three members from the following categories:--
(a) Scheduled Caste.
(b) Scheduled Tribes.
(4) Members of backward Class, annexure and extremely backward.
52. It will thus be obvious that the categories of persons enumerated above will always be members of the Panchayat Samiti. Individual members may be there or may not be there but the categories will always be there. The Mukhias will always be there. The legislators and the Parliamentarians will always be there. Co-opted members will always be there. The personnel of all these categories (except Mukhias) may be changing but the categories from which they came will always be there. The Panchayat Samiti will never cease to have members of the Parliament and members of the legislature. Co-option may come and go but the process of co-option will always be there. It is thus fallacious to say that a Panchayat Samiti does not exist.
53. It will thus be seen that the Act conceive of a permanent Panchayat Samiti. There will never be an occasion where there will be no member of the Panchayat Samiti. The stand of the petitioners that there was no Panchayat Samiti and it had ceased to function has no substance and is rejected accordingly.
54. In paragraph 8 of the petition, it has been stated that the first election of the members of the Panchayat Samiti was held in the year 1978 which subsisted for five years and that another election was held in 1983 which remained effective till 1988 and according to the petitioners there had been no notification after 1988 and therefore the Panchayat Samiti ceased to function in the eye of law. These facts are not correct. The petitioners are guilty of misstatement and suppression of facts. The correct position is that the Panchayat Samities were constituted in 1979.1 have already indicated above that the Panchayat Samities are perpetual bodies without any limitation on their lives. There is certainly a tenure fixed for Pramukh of a Panchayat Samiti. The tenure of the Pramukh has been provided in Section 8. Section 8(2) provides that the tenure of the Pramukh or Up-Pramukh shall be five years. Proviso to Section 8(2) lays down that the State Government shall have power to extend the tenure of the Pramukh beyond five years but that extended period shall not be more than one year. In each case, notifications were issued extending the tenure of Pramukh by one year. The terms thus got extended till 1985. Such a notification was issued on 9th March, 1984 in respect of all the Panchayat Samitis in the State. The petitioners in this application have not annexed the relevant annexure but the said annexure has been annexed in C.W.J.C. No. 8527 of 1989. In annexure A to that writ application, it has been stated that as the extended tenure of office of Pramukh and Up-Pramukhs was to expire in March, 1984, and whereas elections in the Gram Pan-chayats had not been held the State Government in exercise of powers conferred by Section 8 extended the tenure of all Pramukhs till 28th February. Annexure B to the said writ petition is another notification issued by State Government dated 9-2-1985. This notification was issued in exercise of powers conferred by Section 79A of the Panchayat Samiti and Zila Parishad Act. Section 79A lays down that where the tenure of Pramukh and Up-Pramukh is five years and the extended period of the tenure in terms of Section 8(2) has come to an end, the powers of the Pramukh and Up-Pramukh shall be exercised until the next election by a person appointed by the State Government. That person may.be an officer or any one nominated by the State Government. In terms of Section 79A the State Government nominated all the existing Pramukh as the persons designated in terms of Section 79A to discharge the functions of Pramukhs. Thus, every Pramukh who had once become Pramukh in 1979 continues as Pramukh of the Panchayat Samiti. They continue to hold that office even till this date. The stand of the petitioners that the Panchayat Samiti had ceased to exist has thus only got to be stated to be rejected.
55. Annexure 5 to this application shows that at the meeting held on 23-2-1989, Sheo Shankar Singh Pramukh took part in the meeting for the purpose of recommending to the Collector the names of persons who should be nominated Mukhias. The members of the Panchayat Samities recommended unanimously that in the newly established Gram Panchayats, the persons who were holding the office of Mukhias would continue to hold that office. Thus for Bishunpura Gram Panchayat Shri Kapildeo Pandey was recommended for nomination, for Dumari Gram Panchayat Ram Narain Singh, for Ashok-nagar Gram Panchayat Shri Kamla Singh and for Rewari Gram Panchayat Sri Jitendra Rai were recommended for nomination. Names were also recommended for the following new Gram Panchayats : --
Belkunda -- Rameshwar Gamharia Bannipur -- Tula Khan Basdiha -- Rudal Singh Majhaulia -- Surendra Narain Singh The names of members of the Executive Committee also were recommended by the Panchayat Samiti.
56. The discussion above shows clearly that there has been no illegality in nominating Mukhias. It has been done precisely in terms of the proviso to Section 10 of the Panchayat Raj Act. The application, therefore, lacks merit and is fit to be dismissed accordingly.
C.W.J.C. No. 8527 of 1989
57. The petitioner in this application is the Pramukh of Khajauli Panchayat Samiti. In June, 1978, he was elected Mukhia of Khajauli Gram Panchayat. On 10th March, 1979 he was elected Pramukh of the Khajauli Panchayat Samiti. In 1984 his tenure of office was extended. The petitioner has not annexed the notification in regard to extension of the tenure by one year but the said notification has been filed as annexure A to the counter-affidavit filed on behalf of the Collector. By annexure I dated 9-2-1985 (which is same as annexure A to the counter-affidavit) all Pramukhs were designated Pramukhs in terms of Section 79A of the Panchayat Samiti Act. The petitioner has thus continued as Pramukh of the Khajauli Panchayat Samiti. The petitioner has also averred that Up-Pramukh of the said Panchayat Samiti resigned on 21-6-1989 and his resignation was accepted by the competent authority. Whether the resignation of Sukhdeo Kalwar. Up-Pramukh is valid or not is beside the point but it is true that the petitioner was the Pramukh of Khajauli Panchayat Samiti. The fact that Khajauli Gram Panchayat was split into three creating three new Gram Panchayats i.e. (1) Raj Murukiya; (2) Chatara and (3) Lakshmi-pur is not in controversy. No election having been held no Mukhia has been elected for those three Gram Panchayats nor had any nomination been made. By letter dated 30-6-1989, the Commissioner-cum-Secretary in the Rural Development Department, directed the Collectors to fill up the vacant posts of Mukhias. Pursuant thereto, the District Magistrate sent notice to all the members of Khajauli Panchayat Samiti for holding an emergent meeting on 27-7-1989 for nomination of Mukhias of three newly constituted Gram Panchayat. A meeting of the Panchayat Samiti was accordingly held on 27-7-1989. The petitioner presided over the meeting as Pramukh though under protest. The members of the Samiti recommended the names of respondents 3, 4 and 5 for the three newly established Gram Panchayats. Respondent No, 3 Jai Rudra Jha was recommended for Mukhiya, respondent No. 4 Dhanraj Yadav for Chatara and respondent No. 5 Satti Yadav for Laxmipur. The Collector in accordance with the recommendation of the Panchayat Samiti nominated respondents 3, 4 and 5 for the three Gram Panchayats.
58. The petitioner did not accept the validity of the recommendation of the members of the Panchayat Samiti and recommended the names of Kashi Nath Jha, Dhanraj Yadav and Hari Bhushan Rai for their being nominated Mukhias for Rajmurukiya, Chatara and Lakshmipur respectively. This recommendation was in his individual capacity as Pramukh. The Collector ignored the individual recommendation of the petitioner and acting upon the recommendation of the members of the Panchayat Samiti nominated respondents 3,4 and 5 as Mukhias of the three Panchayats. The petitioner is aggrieved by his recommendation for the office of Mukhia being ignored by the Collector. It may be stated here that the petitioner had recommended Dhanraj Rai also respondent No. 4. He should, therefore, have no grievance on that count.
59. The stand of the petitioner is that the tenure of the Panchayat Samiti had come to an end in 1984. Thus it was he alone who constituted the Panchayat Samiti and his recommendation should have been acted upon. Question is, is a Pramukh of a Panchayat Samiti same as the Panchayat Samiti itself. The answer is simple. The petitioner may the Pramukh. The executive functions of the Panchayat Samiti may vest in him but an individual is not the same as a Corporate body. Proviso to Section 10 of the Panchayat Raj Act requires nomination to be made on the basis of the recommendation of the Panchayat Samiti. The Collector, therefore, was bound to act in accordance with the recommendation of the Panchayat Samiti at a meeting. He could not have acted upon the sole recommendation of the Pramukh. The answer is as simple as that.
60. The contention of the petitioner is ill founded. The Panchayat Samiti never ceased to exist. The submission is self-defeating. If I were to accept the stand of the petitioner that there was no Panchayat the logical inference flowing therefrom would be that the petitioner also ceased to be Pramukh. But that was not so. I have considered this aspect of the matter earlier in C.WJ.C. No. 6582 of 1989 and have held that the Panchayat Samitis never ceased to exist nor did they cease to function. It is true that the executive function of the Panchayat Samiti vests in the Pramukh but the Pramukh is not the same as the Panchayat Samiti. In regard to the members of the Panchayat Samiti, the provisions of Section 5 of the Panchayat Samiti and Zila Parishad Act would hold the field. It is fallacious to state that the Panchayat Samiti ceased to function. The Collector, therefore, was absolutely right in calling upon the members of the Panchayat Samiti to recommend names for the office of Mukhia in terms of the proviso to Section 10. The Collector was right in nominating respondents 3, 4 and 5 as Mukhias for three Gram Panchayats. In my view, therefore, the stand of the petitioner that his personal recommendation should have been acted upon in preference to that of the Panchayat Samiti, has no substance and must be rejected accordingly. The nomination of respondents 3, 4 and 5 are unassailable. That disposes of point No. V in paragraph 2 of this judgment.
C.W.J. No. 6948 of 1989
61. The petitioner in this application is acting Mukhia of Rampur Ramhar Barbatta Gram Panchayat within Jandaha Block. The petitioner has moved for quashing of an-nexure 3 dated 30-6-1989 whereby the Com-missioner-cum-Secretary, Rural Development department, directed all District Magistrates to fill up the posts of Mukhias in terms of Section 10(2) of the Panchayat Raj Act. By annexures 1 and 1/A the State Government created Rampur Athahi Barbatta Gram Panchayat which originally were parts of one Gram Panchayat. New Gram Panchayat having been created in terms of Section 3(3) of the Gram Panchayat Raj Act, the power of the Collector to nominate Mukhia and directed by annexure 3 cannot be challanged. The validity of the power of the Collector to act in terms of proviso to Section 10 has been upheld by me earlier. In that view of the matter, there is no substance in the challenge of the petitioner to the power of the Collector. A meeting of the Panchayat Samiti was held on 8-8-1989 and Tripit Narain Singh was recommended for nomination as Mukhia for Athahi Gram Panchayat. Dr. M. R. Karim for Barbatta and Raj Narain Jha for Ganga Lakshmipur Naripur. The Collector has nominated Mukhias in terms of the recommendation. There is thus no substance in the challenge of the petitioner. The application, therefore, lacks merit and is dismissed accordingly.
62. In the result, there is no substance in any of the submissions raised on behalf of the petitioners in these applications. They are accordingly dismissed with costs. Hearing fee Rs. 500/- (five hundred) payable by each of the petitioners to the new Mukhias.
63. C.W.J.C. No. 6790 of 1989 is not being disposed of finally. It will now be placed before a Division Bench which will dispose of the matter in the light of this decision after affording opportunity to the State to produce notification in terms of Section 3(3) of the Act, if such a notification has been issued.
S.B. Sanval, J.
64. I have gone through the judgment of Uday Sinha, J. and I fully agree with his reasons and conclusions. However, I would like to give some reasons of my own in support of the conclusion.
65. The result of these writ petitions depends largely upon the continuance of Section 10 with its proviso added by 1978 Amending Act, which empowers the Collector to nominate Mukliiya for the newly constituted Panchayat and eight members of the Executive Committee, subject to restrictions of Section 79 and the proviso to Clause (iii) of Sub-section (1) of Section 11 till the elected Mukhiya takes oath. The two main lines of attach of the learned counsel for the petitioners are : (a) whole of Sections 2 and 3 of the Amending Ordinance 1987 having been declared ultra vires Arts. 14 and 15 of the Constitution, in the case of Janardan Paswan (supra), Section 10 along with its proviso as it stood prior to 1987 Ordinance, also stood effaced, and (b) the expression "nominated Mukhiya" in the proviso to Section 10 is repugnant to the definition of the word "Mukhiya" Under Section 2(j), inasmuch as "Mukhiya" means head of the Executive Committee elected Under Section 10. The definition, therefore, does not embrace nominated Mukhiya as such a nominated person can never be a Mukhiya empowered with the duties and responsibilities of the Bihar Panchayat Raj Act. The situation will lead to an anomalous position.
66. For appreciating the legality and validity of the first point, a mere reference to Article 13 of the Constitution of India is enough which provides a complete answer to the question. For that matter, one need not resort to the provision of the General Clauses Act as the learned counsel intended us to do. General Clauses Act provides various consequences of amendment, repeal and re-repeal of an enactment.
67. Article 13 of the Constitution of India deals with laws which are inconsistent with or in derogation of the fundamental right. It deals with "laws in force on the day the Constitution came into force and the post-Constitution laws i.e. the law enacted after the promulgation of the Constitution. The word "law" includes Ordinance, Order, Bye-law, Rule, Regulation, Notification custom or usage having the force of law. Article 13(2), which deals with post-Constitution 'law, prohibits making of law, which takes away or abridges the right conferred by Part III of the Constitution, namely, the fundamental rights and it declared the law void to the extent of the contravention. The amending Ordinance of 1987 is a post-Constitution law.
68. The case of Janardan Paswan (supra) declared the re-enacted provision of Section 10 with its provisos by 1987 Ordinance ultra vires Arts. 14and 15 of the Constitution and it further held that the provisos added to the main Section 10 are inseparable. Therefore, Sections 2 and 3 of the amendment Ordinance in its entirety was struck down. What is the result: Is the issue. The concomitant result of such a declaration meant the re-enacted and substituted Section 10 is still-born because it was enacted against constitutional prohibition. It is a bad legislation. It could not, therefore, flutter or in any way affect the old Section 10 with its proviso added in the year 1978. The argument, a repealing Act, when declared ultra vires, will not revive the repealed enactment, and for that matter, what is the difference and consequences which the learned counsel try to impress us by their scholastic argument is redundant and irrelevant. In view of the constitutional mandate as contained under Article 13(2) of the Constitution, Section 10 with its proviso survives the ordeal of amendment and remained wholly unaffected by the change sought to be brought about by 1987 Ordinance. Section 10 and its proviso, as it stood prior to 1987 Ordinance, is fully operative.
69. So far as the second point is concerned, Section 2 itself provides the answer. It says, unless there is any repugnancy in the subject or context, the word "Mukhiya" means......
S. 2, therefore, asks to interpret the word "Mukhiya" as defined Under Section 2(j), unless it is so permissible in the subject or context the word has been used. To put it otherwise, if the definition does not fit in the subject or context, it should not be so interpreted. In other words, the intent of the Legislature must control the legislative definition because the definition is at variance with the plain language of the statute. If the argument of the learned counsel on this point is accepted, it is patent, a nominated Mukhiya can never be an elected Mukhiya and vice versa. If the definition of the word "Mukhiya" Under Section 2(j) is brought to bear to the proviso, it immediately creates a repugnancy and anomaly. Therefore, the words "nominated Mukhiya" have to be read in the setting of the subject and in the context of Section 10. The principal Section 10 speaks about the election of a Mukhiyain the prescribed manner and the proviso envisages till such election is held of a newly constituted Gram Panchayat, the management of the Panchayat will rest in the hands of a nominated Mukhiya to be nominated by the Collector, whose term of office shall expire on the date of taking oath of the elected Mukhiya. The proviso to Section 10 itself uses two expressions, nominated Mukhiya and elected Mukhiya. My learned Brother, Uday Sinha, J. has dealt in detail as to how the nomination has to be effected. Even in the matter of nomination, the Collector has to be guided by the will of the people expressed through the members of the Panchayat Samiti, since the nomination is made on receipt of the recommendations of Panchayat Samiti. There is nothing undemocratic about it. The will of the people is respected even in the matter of nomination of a Mukhiya in a newly constituted Gram Panchayat till elections are held.
70. The other crucial question is: Whether on alteration of the jurisdiction of an existing Gram Panchayat, the severed Gram Panchayat and/or the Gram Panchayats created out of it are newly established Gram Panchayats within the meaning of the Bihar Gram Panchayat Act. In the case of Bhoia Choudhary (supra), a Division Bench of this Court held, the severed Gram Panchayat continued to be existing Gram Panchayat with all its infra-structure intact including the tenure of office of the Mukhiya and, therefore, the Collector can have no jurisdiction to nominate a Mukhiya under proviso to Section 10 of the Act. The Full Bench is called upon to decide the correctness of the said decision, since, doubt has been expressed as to its correctness by another Division Bench of this Court.
71. Several reasons have been assigned in Bhola Choudhary's case (supra) which have been enumerated by my Lord Uday Sinha, J. in para No. 28 of the judgment, as to why the alteration in the jurisdiction of a Gram Panchayat shall not bring into existence a newly constituted Panchayat. In my considered opinion, such an exercise was futile. It is so, but for Sub-section (4) of Section 3 which states "the Gram Panchayat shall be deemed to have been established Under Sub-section (1) with its local limits so altered". "Deemed to have been established" means, where it is not so in reality, the Act requires it to be treated as if it was so. The celebrated judgment of Lord Asquith, referred to by ray Brother Uday Sinha, J. has been approved by the Apex Court in several decisions (See AIR 1953 SC 244, AIR 1959 SC 352 and AIR 1962 SC663). The statute ordains to imagine certain state of affairs but "it does not say that having done so, you must cause of permit your imagination to boggle when it comes to the inevitable corollary of that state of affairs". This position has also been reiterated in several decisions of this Court, to wit 1989 PUR 199 (Division Bench). The reasoning in Bhola Choudhary's case (supra) that there should have been an express provision in the statute to the said effect is begging the question. The Legislature has made its intendment clear in this regard Under Sub-section (4) of Section 3. When a thing is deemed to be something else, it is to be treated as if it is that, though in fact, it is not. It is true that a legal fiction ought to be extended beyond the purpose for which the Legislature adopted it (see AIR 1979 SC 1493) and the legal fiction cannot be carried further than what it is intended for (See AIR I960 SC 1016). I am quite alive of it. What is intended by Legislature in the instant case is, the alteration will amount to establishment of a new Gram Panchayat Under Section 3(1). Once that is so, it has to be dealt with Under Section 10.
72. So far as the other reason that the tenure of the office of Mukhiya and its termination having been expressly provided Under Section 11(2) and Section 79-B, the termination of the office of a Mukhiya cannot be brought about by resort to notification Under Section 3(3) of the Act is concerned, the scheme of the Act contemplates that the term of the office of Mukhiya can also be terminated by dissolution of the Gram Panchayat and it mandates reconsti-tution in accordance with Sections 10 and 11 of the Act. A notification Under Section 3(3) of the Act altering the local limits of the jurisdiction of Gram Panchayat brings about a dissolution of the said Gram Panchayat by bringing into existence a Gram Panchayat established Under Section 3(1) of the Act with its local limits so altered. Whether it retains the same name or is known by another name, is not at all relevant.
The dissolution contemplated Under Sub-sections 3(3) and 3(4) is the result of a legal fiction and an inevitable corollary of the state of affairs. A mere non-mention about it in Section 11(2) is inconsequential. I do not see how Section 3-B, another reasoning in the case of Bhola Choudhary (supra) causes any anomaly. On the contrary, it mandates a general election to be held in such Gram Panchayat created by issuance of a Notification Under Section 3(3), but no such order be made "if the next general election in the Gram Panchayat is due within six months of the date of the notification under Sub-section (3) of Section 3", as envisaged in the second proviso to Section 3-B. I refrain from considering the other reasons assigned by Ramanandan Prasad, J. since my learned Brother Uday Sinha, J. has exhaustively dealt with them. I am of the opinion that Bhola Choudhary's case (supra) has failed to give full effect to the legal fiction created Under Section 3(4) of the Act. In absence of the legal fiction, the Full Bench would have no difficulty in affirming the decision in Bhola Choudhary case (supra), but the legal fiction makes all the difference.
S. Hoda, J.
73.1 agree with Hon'ble Uday Sinha, J.