Jaganmohan Reddy, J.
(1) This Writ Petition and many others which raise a similar question, challenges the validity of G. O. Ms. No. 532 dated 15-5-1964 issued by the Panchayat Raj Department of the Government of Andhra Pradesh. The petitioner also imputes mala fides in so far as the reconstitution of the Gudur Panchayat Samithi in such a manner as to take away some Panchayats which were supporting him and attaching the same to some other Samithi is concerned. The petitioner/ who belongs to the Swantantra Party is the President of Momidi Panchayat in Gudur Taluk and was also the President of the Gudur Panchayat Samithi constituted on 1-11-1959. In the present elections also, he has been elected as the President of the Momidi Panchayat. According to him, the ruling party wanted to set up one Siddareddy Venkata Krishna Reddy for the Presidentship of the Panchayat Samithi during the 1960 elections, and for that purpose he was sought to be brought in as a co-opted member, but that attempt having failed and having realised that they have no strength, they did not set up any candidate to oppose the petitioner. Even in the forthcoming elections, it was a foregone conclusion that the 1st petitioner would be re-elected as the President of the Samithi unopposed, if the Gudur Samithi were to be left intact as it is. Faced with this situation, the present Zilla Parishad Chairman, Sri N. Chandrasekhara Reddy thought of a device to disrupt Gudur Block beyond recognition and used his influence to deprive him even an opportunity to contest for the Gudur Samithi, under the guise of general delimitation of Samithis in the State. The 2nd petitioner was the President Uppalamarthi Panchayat in Nayudupet Block. He is once again elected as the President for the said Panchayat for the term commencing with 1-7-1964 and is deeply interested in the affairs of the Samithi and in fact he declared himself as the candidate on behalf of the Swatantra Party to oppose the Congress Candidate. He also is aggrieved by the impugned notification, inasmuch as Nayudupet Panchayat Samithis was altogether obliterated and a part of it where the Congress had the majority was added to the Gudur Samithi and the rest of it was added to Sullurpet Samithi.
(2) It is further submitted that the Government with a view to reorganise the blocks, appointed a high-power committee under the Chairmanship of Shri M. P. Pai, for suggesting ways and means of administer these blocks more efficiently. The committee submitted a number of recommendations and the two relevant recommendations are (10 that the revenue taluk must be taken as a unit and (2) that the headquarters of the block should in no case be more than 15 miles away from any of the Panchayats in the block. After the recommendations were submitted by the committee, the Government adopted the revenue division as the unit instead of the revenue taluk and so far as the second recommendation is concerned, the Government accepted it. This recommendation was made with a view to achieve the object of compactness in constituting the blocks.
(3) In the Gudur division, there are 5 existing blocks, viz. , Sullurpet. Naidupet, Gudur, Kota and Venkatagiri. Under the impugned notification, the number of blocks is reduced to four from five, and this was sought to be achieved by abolishing the Nayudupet block and by adding portions of the said block to Gudur and Sullurpet. The Venkatagiri block was retained intact, without any addition or subtraction. The other three blocks under the impugned notification, viz. , Sullurpet, Gudur and Kota were redelimited introducing far-reaching changes. Apart from the abolition of Nayudupeta block, the Gudur block was so re-delimited as to take away 19 of the existing panchayats and adding 21 new panchayats to Nayudupeta Samithi and three panchayats from Kota Samithi. The petitioners allege that this action is mala fide and was made to achieve the object of securing majority for the Congress Party in Gudur Samithi and to retain Kota Samithi at any cost, as the present President of the Zilla Parishad hails from that place.
(4) The learned counsel for the petitioners, Sri Babul Reddy, contends firstly, that there is no power vested in the Government under the Zilla Parishads Act to reconstitute or redelimit a block in such a way as to abolish any of the existing blocks, consequently, the impugned notification issued is ultra vires the powers of the Government and must be quashed. If, however, it is held that Government has power to issue such a notice, then that power having been exercised mala fide in so far as redelimitation of the present blocks in the Gudur division is concerned, is discriminatory and must be struck down.
(5) The first question is of far-reaching effect and has been challenged in over 50 writ petitions; as such all those interested and who wished to supplement the argument on either side have been permitted to do so. We now propose to consider this question first.
(6) It may be stated that the Government has in exercise of the powers conferred by Clause (b) of Section 2 of the Andhra Pradesh Panchayat Samithis and Zilla Parishads Act (XXXV of 1959) (hereinafter called the 'Zilla Parishad Act') by a notification G. O. Ms. 532 dated 15-5-1964 has redelimited all the blocks in the State of Andhra Pradesh and in exercise of the powers conferred under Section 3 (3) and sub-section (12) of Section 14 of the Zilla Parishad Act by a Notification G. O. Ms. No. 598 dated 2-6-64 reconstituted the Panchayat Samithis specified in the schedule for the blocks redelimited by notification No. 532 of 15-5-64 as from 1-7-1964. As a result of this, 448 blocks for which Panchayat Samithis were constituted and were in existence have been reduced to 321; and as a consequence 127 Panchayat Samithis were abolished. There has in fact been no notification specifically abolishing any of these Panchayat Samithis.
It is, contended that the power of redelimitation under Section 3 (3) cannot considered as conferred a power to abolish. The power of abolition of a Panchayat Samithi once constituted, being a legislative power, must be conferred specifically and cannot be treated as an incidentally arise therefrom. The only power, it is submitted, which the Government has is the power of supersession and dissolution conferred by Section 63 and which can be exercised where it appears to the Government that a Panchayat Samithi or a Zilla Parishad is not competent to perform its functions or has failed to exercise its power or perform its functions or has exceeded or abused its powers conferred upon it by or under the Act or by any other law for the time being in force. There being no such occasion to exercise that power, the Government has not used that power. At any rate, it has specifically drawn on the powers under Section 2 (b) and 3 (3) to redelimit the blocks and reconstitute panchayats, as a result of which, as has been already stated, 127 panchayats have been abolished.
It is submitted that there is no power to abolish Panchayat Samithis. Once a samithi is constituted, it is a body corporate and has a perpetual succession and can sue and be sued and enter into a contract. It cannot be abolished unless there is specific power in the Act. If it was the intention of the Legislature to grant the power to abolish after the constitution of Samithi, a specific provision would have been made as in Section 45 of the Madras District Municipalities Act or Section 3 of the Madras Village Panchayats Act and even under the latest Gram Panchayats Act. Since there is no indication in the Act itself as to what has to be done if the Samithi is to be abolished, nor has the Legislature deemed it necessary to give an opportunity to the Samithi which is to be abolished, it must be deemed that the Legislature has not vested any power in the Government to abolish. If it is held that no legislation is needed and it can be done by a notification, then that is a case of excessive delegation.
(7) Mr. Chowdhary contends that when a statute has given an express power, it cannot infer a power inconsistent with it. Secondly, whenever, it is contemplated to abolish any of the local administrative bodies, the Legislature has made a provision for a notice to be given to the body which is affected. But in this case, no such safeguard has been provided for, from which it can be inferred that the Legislature did not intend to confer any power of abolition. Thirdly, the constitution or extinction of a local body or a municipality is a legislative function and arises out of the powers of the State to legislate under Entry, 5, List 2 of the Seventh Schedule read with Arts. 245 and 246 of the Constitution. It is further contended that if a power to abolish is to be inferred, there being no guidance as to the exercise of that power, it is a naked power and offends Art. 14 of the Constitution.
(8) Shri Anantha Babu argues that the Village Panchayats and Samithis are constituted in furtherance of the Directive Principles contained in Art. 40 of the Constitution. These village organs are vested with powers to discharge various functions for the amelioration and good of the rural population; so that it cannot be assumed that the Legislature intended to confer the power of abolition, once these organs are brought into being. Even an incidental or ancillary power is only inferred for the purpose of nurturing the body created by statute, but it is never for destroying it. Even where it is to be assumed that the incidental powers can be dealt with by rules until these rules are framed no power to abolish can be exercised. Mr. Laxminarayana has also urged similar arguments in support of the petitioner's contention.
(9) On the other hand, the learned Government Pleader Sri. P. Ramachandra Reddy, contends that since the block is the basis of a Panchayat Samithi and the Government has power to redelimit a Block and reconstitute a Panchayat Samithi, it can redelimit a block to any extent, even to an extent which may impinge upon the other Block to its total extinction and reconstitute a Panchayat Samithi in such a way as to necessarily result in the abolition of the other Panchayat Samithi. Once the Government is empowered to redelimit a Block and as a consequence the Block goes, then that Samithis also goes and another is reconstituted. The abolition of a Samithi is an incident or is a necessary consequence under Section 3 (3).
He further contends that there is no merit in the argument that an implied power of dissolution of a Panchayat Samithi offends Art. 14, firstly because a right of franchise is not a fundamental fight as held by the Supreme Court in Jamuna Prasad Mukhariya v. Lachhi Ram, : 1SCR608 and consequently, Art 14 which stands on a higher footing, if it is a question of fundamental right, can only be struck down if there is excessive delegation or if the conferment of the power has no rational nexus with the purpose to be achieved, which can be gathered from the provisions of the Act ; and secondly, a discretionary power need not necessarily be discriminatory, nor can abuse of power be easily assumed where a discretion is vested in the Government. It is also contended that even if there is a statutory lacuna, in the sense that there is no provision for the disposal of the property or what is to happen to the claims or suits by or against a Panchayat Samithi, the Government has power to fill it by subordinate legislation and that he has advised the Government to frame rules in respect thereto.
(10) At one stage it was sought to be argued that the creation of a Block or redelimitation of a Block can be executive action alone, without reference to Section 2 (b) of the Zilla Parishads Act. But the impugned notification shows that the Government has drawn on the powers conferred under Section 2 (b), and consequently this point was not seriously urged. There is, in our opinion, no warrant also for such a contention. The power to declare an area in a district as a Block for the purposes of constituting a Samithi for it is specifically conferred by Section 2 (b) and is not a power inherent to the executive.
(11) The learned Government Pleader raises a technical objection, viz., that since personal rights of none of the petitioners is affected, inasmuch as all the petitioners are either ex-officio members of the existing Panchayat Samithis or the Panchayat Samithis to come into being, or those who intend to contest in the elections of the Samithi which would only come into being on 1-7-1964, none of them have any personal rights to prosecute this petition. It is pointed out that all the village panchayats in the State are constituents of some Samithi, or other, and consequently, the people of the villages have been given effective representation. No person, it is submitted, has a right to say that he must be a part of any particular Block. For these reasons he say this petition must be rejected.
(12) Mr. Narasaraju, who is appearing for one of the respondents, oppose the writ petition and supplements the arguments of the learned Government Pleader. He contends that there is a fundamental difference between the existence of a power and its use. When we are dealing with an existence of power, we do not assume abuse of power. The Legislature has passed by Zilla Parishads Act under the powers conferred by Entry 5, List 2 of Schedule 7. If a power to legislate is conferred on the Legislative Assembly or Parliament by the Constitution, all ancillary or incidental powers are assumed. The word 'constitute' in Entry 5 would include the power to abolish, so that when the Government is empowered to constitute a Samithi for a Block by a notification, it has also power to abolish the Samithi by a similar notification. He further submits that a corporate body can be brought into existence in one of three ways, viz., (1) by a Royal or a Special Charter: (2) by a general statute for creation of a body if certain conditions are satisfied; and (3) when a statutory authority is conferred on the Government to bring into existence a corporate body by a notification the corporate body by a notification the corporate character is attached to the act of issuing the notification itself. Examples of the latter type of creation of corporate bodies are the River Boards Act, 1956, the State Financial Corporation Act, the Road Transport Corporation Act, 1950,. the Electricity Supply Act, 1948. These Acts are similar to the Zilla Parishads Act, where the Government is empowered by notification to bring into existence bodies which once they have been created have corporate existence.
It is, therefore, contended that where an Act confers a power to notify from time to time the reconstitution of a Samithi, there is power to change its corporate character. It is further contended that no question of delegation of a legislative power is involved is this case, when it states that Government may declare any Block or demarcate any Block. A legislative power is that which a Legislative alone can do and not the executive. Even if it is assumed that it is a delegation of Legislative power, it must be in relation to the purpose of the Act. The purpose is to constitute a Block with a certain number of Panchayats. So long as a Block with that purpose is created, that purpose if fulfilled. Once there is the power, unless it is executed it can be exercised from time to time. Reference to the notification in Section 21 of the General Clauses Act (Central) is only in relation to subordinate legislation; but section 15 of the Madras General Clauses Act applies even to substantive provisions. He further argues that redelimitation necessarily carries with it the ideal of a change of the area, and a change in the area after the Samithi is constituted would involve a reconstitution of the Samithi and as such, the reconstitution is a case of devolution; so that if it is reconstituted, the only question will be, in whom does the property of that Samithis vest? If the Legislature has not made any provision, certainly the Government can, under the Henry VIII clause to remove the difficulties, make suitable provision to provide for the devolution of the property and other incidental matters.
(13) Mr. Kodandaramayya also appearing for one of the respondents, says that the example of the District Municipalities Act is not applicable to the case of Zilla Parishads Act, because under Section 5 of the District Municipalities Act the effect of abrogation of the Municipality is to put an end to the electorate itself; but no such thing is intended to be done under section 3 (3) of the Zilla Parishads Act. This according to him, is the reason why no safeguards have been provided for. He further submits that the word 'reconstitute' involves two ideas; i.e., to cancel and constitute, resulting in a new body. If this is the meaning to be given to 'reconstitutes', then Section 3 (3) gives express powers.
(14) The two most important questions which arise from the several contentions raised in this case are :
1. Where the Government has been given the power to declare an area in a district as a Block and to constitute a Panchayat Samithi invested with corporate character for that Block by notification, has it, by the very nature of that power, the power to abolish the Block and the Samithi? And
2. After the constitution of the Panchayat Samithi, does the power conferred under S. 3 (3) of to reconstitute a Panchayat Samithi for that Block extend to reorganise Block and to reconstitute the Block in such a way as to totally extinguish a Samithi already constituted; in other words can the power of redelimitation and reconstitution be exercised to annex to a Panchayat Samithi the total area of another Panchayat Samithi already in existence to its complete extinction?
All other questions that have been urged are incidental to these main points which fall for determination. We, therefore, propose to inquire first into the scope and extent of the power conferred by the statute.
(15) But before we do so, it would be useful to refer to certain fundamental and basic concepts of a corporate existence, which is what the statute has clothed a Panchayat Samithi with under Section 3 (2) of the Zilla Parishads Act. It is undisputed that the Government must first declare by notification an area in a district as a Block under Section 2 (b). Then under Section 3 (1) by another notification, it must constitute a Panchayat Samithi for that Block to come into effect from such date as may be specified therein. Sub-section (2) of Section 3 says that every Panchayat Samithi shall, by the name of the Block for which it is constituted, be a body corporate having perpetual succession accused and a common seal with power to acquire, hold and dispose of property and to enter into contracts and may, by its corporate name, sue and be sued. As we have already stated, the Government has in exercise of these powers divided the whole of the Andhra Pradesh State into blocks and constituted Samithis, for which elections have been held in 1960 and these Samithis were functioning on the date of the impugned notification. The Panchayat Samithis thus constituted are statutory bodies owing their existence to the Legislature of the State in which they are organised and endowed with corporate existence. The learned Advocate, Mr. Narasaraju, tried to classify the manner of creation of these corporate bodies into those constituted by a royal charter, or by a general statute for creation of these corporate bodies into those constituted by a royal charter, or by a general statute creation of a body on certain conditions being satisfied; or by conferment on the Government power to notify the constitution of a corporate body, of which the constitution of Panchayat Samithi is an example.
But we have not been able to appreciate for what purpose this classification has been made, because the constitution of a coporate body by any of these methods, nonetheless clothes them with the same characteristics of corporate existence, and his reference to the several statutes which authorised the Government to create corporate bodies by means of notification does not in any way assist us in finding a solution. On the other hand, these very Acts, except in the case of the Electricity Supply Act, confer specific powers of dissolution (Vide Section 27(1) of the River Boards Act, Section 45 of the State Financial Corporation Act and Section 38 and 39 of the Road Transport Corporation Act). The conferment of such a specific power to dissolve would show that the Legislature, notwithstanding the fact that it had conferred a power on the Government to bring into existence a body corporate by notification, has specifically provided for dissolution of the same. If, however, these provisions were not there, could it be argued that the power to notify a body corporate would also imply a power to abolish by notification? In aid of this contention, Section 21 of the Central General Clauses Act and Section 15 of the Madras General Clauses Act are sought to be pressed into service. In our view, a great deal would depend upon the nature of the power conferred upon the body created by statute.
(16) A Panchayat Samithi under Section 3 (2) of the Zilla Parishads Act, is a legal entity, being known by the name of the Block, having a perpetual succession and a common seal with power to acquire, hold and dispose of property and in its corporate name to sue and be sued. These are all the attributes which, in legal theory, a legal person known as corporate aggregate has. A corporation aggregate is a body consisting of several members; but in law it is different from its members. In other words, the property of the corporate body is not in law the property of its members; not the rights and liabilities of that body are those that can be attributed to its members. While the corporate body may become insolvent, it is not necessary that the members may be in impecunious circumstances. It can even be said that its members may be reduced to such an extent there is only one of them left, without affecting the existence of the corporate body.
Even this legal concept has now been developed to support the position that a corporate body is capable of surviving the last of its members; though according to Blackstone (Holdsworth, History of English Law Vol. III, p. 489, IX 62) at common law, a Corporation is dissolved by the death of all its members. But this assumption, as pointed out by some of the authors, is not a logical one, as it does not apply to corporation sole, for beings of this sort lead a continuous life, notwithstanding the intervals between the death or retirement of his successor. Not is there any reasons to suppose that such a ground of dissolution is known to the trading corporations which are incorporated under the Companies Acts. Salmond uses this illustration to fortify his fiction theory of corporate personality for an entity which can survive the last of its members having only a fictional existence.
Corporation being established by statute, can be dissolved only in the manner provided by the statute to which they owe their origin. The perpetual succession which the corporate body is said to have, means that it exists irrespective of the natural persons who composed it or changes in the membership, either by death, addition or replacement by new members. Notwithstanding these changes in the human composition, the corporate body continuous and the obligations incurred by one group of members bind the corporate body even though the whole of the membership has been changed. The acts and decisions of the body are only valid if they are authenticated by its common seal, which takes the place of signature by a natural person. As we have said, it can enter into contracts, acquire property, dispose of it, can sue and be sued.
(17) When a coroporate body has such attributes and is given the power to enter into obligations and is vested with power to enforce its rights by recourse to law or can be sued, the existence of such a body cannot be obliterated by mere implications or in exercise of an incidental power, without providing for the succession to those rights and obligation which have been acquired or entered into body. Salmond in his book on Jurisprudence (11th Edn. p. 371) in dealing with creation and extinction of Corporations, has stated as follows:
'The birth and death of legal persons are determined not by nature, but by the law. They come into existence at the will of the law, and they endure during its good pleasure. Corporation may established by royal charter, by statute, by immemorial custom, and in recent years by agreement of their members expressed in statutory forms and subject to statutory provisions and limitations. They are in their own nature capable of indefinite duration, this being indeed one of their chief virtues as compared with humanity, but they are not incapable of destruction. The extinction of a body corporate is called its dissolution the severing of that legal body by which its members are knit together into a unity. We have already noticed that a legal person does not of necessity lose its life with the destruction or disappearance of its corpus or bodily substance. There is no reason why a corporation should not continue to live, although the last of its members is dead; and a corporation sole is merely dormant, not extinct, during the interval between two successive occupants of the office.'
Even though the Roman Law, the dissolution of a corporation could only be effected by the State, even against the will of the members, and death of all its members does not result in the dissolution of the corporation.
(18) A corporation can, therefore, be dissolved only by law and in the manner prescribed by it. It is not however automatically dissolved by the happening of certain events, such as we have pointed out, as where all the persons constituting it cease to be its members or by any increase or decreases in the area or by enlargement or diminution of its limits. In the United States also, this principle has been accepted. ' A Corporation is not dissolved, nor is its identity affected, by enlargement or diminution of its corporate limits, by a change in its charter or corporate from, by an increase or decrease in the number of its corporators or inhabitants, by a change of its name, by failure of the legislature to assign a city to its proper class, by transition from a hamlet, village or town to a city, or vice versa, or by passing from one class or grade to another class or grade' (See Municipal Corporation , McQuillin, Vol. 2 Third Edn. p. 420- also Broughton v. Pensacola, (1874-76) 23 Law Ed. 896 and Girard v. Philadelphia, (1868-70) 19 Law Ed. 53.
(19) It is therefore, clear that a corporate body does not ipso facto become dissolved, nor is it destroyed, either by the non-user of its powers in whole or in part, or even where all the members cease to exist or the inhabitants remove outside the corporate limits. There must be some power either express or implied, under which such dissolution or extinction of corporate existence can be effected. These legal principles lead to the conclusion that the mere fact that Panchayat Samithis are recoganised in such a way as to decrease the territory of other Panchayat Samithis to their total extinction, even if that power to annex exists, does not ipso facto dissolve or extinguish the Samithi whose territory has been completely annexed. There should either be an express provision to effect such dissolution, or where an implied power is sought to be spelled out, the other provisions of the Act must justify it.
(20) The only two provisions, as admitted by all the learned advocates, contained in the Zilla Parishads Act which pertain to this aspect of the matter are Sections 3 (3) and 63 read with Ss. 2 (b) (g) and (h) and the relevant provisions Act. II of 1964 (hereinafter called the Gram Panchayats Act), viz. Section 236, Schedule VI, Rules 2, 11, 12 and 13. Sections 2 (b), (g) and (h), 3 (1), 3 (3) and 63 of the Zilla Parishads Act read as follows:
2(b) ''Block' means such area in a district as may be declared by this Government by Notification to be a block.'
(g) ''Panchayat' means in relation to the Andhra area, a panchayat constituted under the Andhra Pradesh (Andhra Area) Village Panchayats Act 1950 (Act X of 1950) and in relation to the Telangana area a gram panchayat constituted under the Andhra Pradesh (Telangana Area) Gram Panchayats Act, 1956 (Act XVII of 1956);'
(h) ''Panchayat Samithi' means a Panchayat Samithi constituted under Section 3 or reconstituted under that section or Section 63;'
3(1) ''The Government may, be notification, constitute a Panchayat Samithi for a Block with effect from such date as may be specified therein.'
3 (3) 'If, after a Panchayat Samithi is constituted for a Block under sub-section (1), the Block is redelimited, the Government may reconstitute the Panchayat Samithi for the redelimited Block under the provisions of that sub-section;
Provided that in reconstituting the Panchayat Samithi, the Government may direct that the President, the Vice President, an elected member or a nominated member of the Panchayat Samithi which was functioning immediately before such redelimitation and who is otherwise qualified to hold such office in the reconstituted Panchayat Samithi, shall be the President, Vice President, elected member or nominated member of the reconstituted Panchayat Samithi as if he was elected, or nominated, as the case may be, to such office in the reconstituted Panchayat Samithi.'
63(1) (i) 'If, at any time, it appears to the Government that a Panchayat Samithi or a Zilla Parishads is not competent to perform its functions or has failed to exercise its powers or perform its functions or has exceeded or abused any of the powers conferred upon it by or under this Act, or any other law for the time being in force, the Government may direct the Panchayat Samithi, or as the case may be, the Zilla Parishad, to remedy such incompetency, failure, excess or abuse or to give a satisfactory explanation therefor and if the Panchayat Samithi or the Zilla Parishad fails to comply with such direction, the Government may supersede the Panchayat Samithi or the Zilla Parishad as the case may be, for a period not exceeding one year from specified date or dissolve it with effect from a specified date and reconstitute it either immediately or with effect from another specified date, and cause any or all of the powers and functions of the Panchayat Samithi or Zilla Parishad to be exercised and performed by such person or authority as the Government may appoint in that behalf during the period of its supersession or until the Panchayat Samithi or Zilla Parishad is reconstituted in accordance with the provisions of this Act, and any person or authority so appointed may, if the Government so direct, receive remuneration for the service render from the funds of the Panchayat Samithi or the Zilla Parishad, as the case may be. * * * * * * * * * *'
(21) Section 236 of the Gram Panchayat Act 1964 is in the following terms :
236 (1) 'In regard to the first constitution of a gram panchayat for a village, or to the first reconstitution in accordance with the provisions of this Act of a gram panchayat in existence at the commencement thereof, and otherwise in first giving effect to the said provisions, they shall be read subject to the rules in Schedule VI. * * * * * * * * *'
Rules 2, 11, 12 and 13 Schedule VI to the Gram Panchayats Act are as follows:
Rule 2 (1) 'Every local area which, at the commencement of this Act, is a village under the old Andhra Area Act or the old Telangana Area Act, or a town municipality under the Municipal Act, as the case may be shall be deemed to have been declared to be a village under this Act.
(2) Every panchayat in existence at the commencement of this Act shall be deemed to be a gram panchayat constituted under this Act.'
Rule 11(1) 'All property, all rights of whatever kind, used, enjoyed or possessed by, and all interests or whatever kind, owned by or vested in, or held in trust, by or for any panchayat, as well as all liabilities legally subsisting against it, shall, on and from the date of commencement of this Act and subject of such directions as the Government may, be general or special order, give in this behalf, pass to such gram panchayat as deemed to be constituted under this Act.
(2) All arrears of taxes or other payment by way of composition for a tax or due for expenses or compensation or otherwise due to a panchayat at the commencement of this Act may be recovered as if they had accrued under this Act.
(3) All proceedings taken by or against any panchayat or other authority or any person under the old Andhra Area Act or the old Telangana Area Act or the Municipal Act in so far as they are not inconsistent with this Act, be constituted by or against such gram panchayat, authority or person under this Act.'
Rule 12, 'Any tax, cess or fee which was being lawfully levied by or on behalf of any panchayat at the commencement of this Act, shall continue to be levied by or on behalf of the gram panchayat for the year in which this Act is brought into force and unless and until the Government, by general or special order, otherwise direct, for subsequent years also.'
Rule 13, 'Any action taken under the old Andhra Area Act or the old Telangana Area Act or the Municipal Act, by any authority, before the commencement of this Act shall, unless inconsistent with this Act, be deemed to have been taken by the authority competent to take such action under this Act, unless and until superseded by action taken by such authority, whether it be the same as the authority competent to take such action under the old Andhra Area Act or the old Telangana Area Act or the Municipal Act or not.'
It may be noticed that the transitory provisions under Section 236 of the Gram Panchayat Act, 1964, read with Rule 4 of Schedule VI provide that every local area which, at commencement of that Act, is a village under the old Andhra Area Act or the old Telangana Area Act, or a town municipality under the Municipal Act, was declared to be a village under that Act and every panchayat in existence at the commencement of that Act was deemed to be a gram panchayat constituted under this Act. By this means, the Legislature brought the existing panchayats under the purview of the new Act as if they are constituted under that Act. It provided by Rule 4 that tenure of office of existing president, vice-president and members of a panchayat was to be till 1st July, 1964. There is provision under Rule 5 for existing wards and under Rule 6 reservation of seats in certain cases is provided for. Rule 7 says when the first ordinary elections are to be held and Rule 8 deals with reconstitution of panchayats dissolved or superseded before the commencement of the Act.
(22) It is significant to note that notwithstanding the provision in Rule 2 of Schedule VI, viz., that the panchayats existing on the date of the Gram Panchayats Act are deemed to be constituted under the new Act, the Legislature made specific provisions under Rule 11 in respect of devolution of property and their rights and liabilities, and under Rules 12 and 13 it has provided for the continuance of the existing taxes and the action taken under the old Andhra Act or the Telangana Area Act or the Municipal Act. These provisions make it abundantly clear that the Legislature is aware of the significance of reconstitution of a panchayat, which is also body corporate, and even though it preserved all the panchayats that were in existence on the date of the new Act as if constituted under that Act, left no ground for argument that since these are deemed to be constituted under the new Act they are new Panchayats and the rights and obligations of the old do not devolve on them, by making specific provisions therefor. The legal effect of providing that the old panchayats are deemed to be constituted under the new Act would be to dissolve the old panchayats and constitute them under the new Act. Consequently, the legislature took meticulous care to make necessary provisions for the devolution of the rights and liabilities and to give continuity to the actions taken by the old panchayats.
In so far as the Panchayat Samithis are concerned, there is absence of similar legislative action. As a result, the panchayat samithis constituted under that Act would normally continue. But the Government has reconstituted these panchayats under Section 3 (3). Section 3(3) gives power only to redelimit a block and to reconstitute a panchayat for that redelimted block. The condition for the exercise of the power under this sub-section is that a Panchayat Samithi should have been consititued, viz., that a block should have been declared under Section 2(b) and a panchayat samithi should have been constituted under the Section 3 (1). It is only after the constitution of a panchayat samithi for a block under sub-section (1) of Section 3 of the block can be redelimited, and if it is redelimted, the Government may reconstitute a panchayat samithi for the redelimted block under the provisions of that sub-section.
(23) From the language of this section it is sought to be contended that a block can be redelimited only under Section 2 (b) and if it is redelimited, it is not obligatory on the part of the Government to reconstitute a panchayat samithi for that block, as the word used is 'may'. As a necessary consequence of this discretionary power vested in the Government to constitute or not to constitute a Panchayat Samithi for redelimted block, it is contended that the Government has power to redelimit the block in such a way as to destroy the Panchayat Samithi constituted for that Block. But this argument does not meet the important objection that once a block is constituted as a Panchayat Samithi, that Panchayat Samithi being a body corporate, cannot be obliterated by merely redelimiting the block. In fact, the language of sub-section (3) of Section 3 does not lend itself to the argument that be merely redelimiting the Block the Samithi gets dissolved and the Government may or may not reconstitute a Samithi for that block.
The word 'delimit' in its natural sense means 'to mark out as a boundary' to bound; to mark or determine the limits of; to define as a limit or boundary'. It is used in the sense of adjusting or demarcating the boundaries between two entities belonging to two different persons countries or bodies. The word 'delimit' or 'redelimit' connotes only the determination of a limit or boundary, specially a frontier or a territory, and is totally inappropriate in is use to annex a territory of a neighbour in such a way as to deprive it altogether so as to bring about its total extinction. The proviso to sub-section (3) of Section 3 also indicates that the Legislature never intended to confer a power on the Government under that sub-section to abolish a samithi. By this proviso power is conferred on the Government in the event of reconstitution of a Panchayat Samithi under sub-section (3) to direct that the President, Vice-President, an elected member or a nominated member of a Panchayat Samithi which was functioning immediately before such redelimitation and who is otherwise qualified to hold such power under the reconstituted Panchayat Samithi, as if he was elected or nominated, as the case may be, to such office in the reconstituted Samithi.
Our conclusion would become clear if we take two Panchayat Samithis, the block of one of which is sought to be redelimited. As a consequence however, the other Panchayat Samithi also is bound to be redelimited, because if by redelimiting the Block area of one Panchayat Samithi must protanto be diminished, with the result that both the Panchayat Samithis have to be reconstituted. If as contended, the area of one Panchayat Samithi is so redelimited as to annex the entire area of the other Panchayat Samithi, apart from the question of what is to be done with regard to the assets and liabilities, obligations claims of the extinct Panchayat Samithi, there would be two Presidents, two Vice-Presidents, two sets of elected members and two sets of nominated members. To which of the set is the proviso applicable and what is to happen to the other set? The proviso does not specify which of these sets of persons can be directed to be the President, Vice-President, elected member and nominated member of the reconstituted Panchayat Samithi.
Further, once the Government has exercised its powers under Section 2 (b) of constituting a Block and a Panchayat Samithi for that Block, its power gets exhausted and, in our view, Section 2 (b) cannot by itself be used to redelimit that Block. The power of redelimitation of a Block for which a Samithi has been constituted has been assumed under Section 3(3); as such it is only under Section 3(3) in conjunction with Section 2(b) the delimitation and reconstitution of the redelimited Block can take place. It cannot also be said by reference to either Section 15 of the Madras General Clauses Act or Section 21 of the Central General Clauses Act, that the power to notify under S. 2 (b) would also include a power to cancel the notification, for the simple reason that once a Panchayat Samithi that once a Panchayat Samithi is constituted for a Block, the Samithi becomes body corporate and the area of it cannot be taken away or varied, unless a power is conferred on the Government. Both sections 21 of the Central Act and Section 15 of the Madras General Clauses Act embody only a rule of construction which should be applied if the construction cannot be arrived at or determined with reference to the context or subject-matter of the particular statute.
While a notification under Section 2 (b) can declare a particular area as a Block, the very essence of the notification under Section 3 (1) is to create a body which is indestructible, unless the power to destroy is specifically conferred or can be spelled out from the specific provisions of the Act. It cannot easily be done, unless there are specific indications in the Act itself that that was what the Legislature intended. If, however, before a notification under Section 3 (1) an area has been declared as a Block and the Government wants to alter or reorganise that area, it may have the power to do so, but not after the Panchayat Samithi has been constituted for that Block under Section 3(1). The power exercisable under Ss. 2 (b) and 3 (1) are inter-locked and as such when the power under Section 3 (1) is once exercised , there is no power to vary, cancel or modify what has already been done unless it be in conjunction with Section 3 (3).
(24) It is argued that by the use of the word 'constitute' in Section 3 (1) the Legislature conferred powers to dissolution also. That this is so is sought to be deduced by analogy of the legislative power contained in Entry 5 List 2 of Sch. 7 of the Constitution of India. Under that Entry, the State is given exclusive power to make laws in respect of matters concerning Local Government, that is to say, the constitution and powers of municipal corporation, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-Government or village administration. Since the word 'constitution' in this legislative list also includes dissolution, it is contended that the power of dissolution is a legislative function and incidental to the power to constitute, a similar construction should be given to that word in Section 3 (1) as to confer a power on the Government to abolish a Panchayat Samithi. It has been a well-established principle, laid down not only by the highest Court in this Country, but also in other countries, that a power conferred by an organic instrument is large and wide and must be construed as such. It has no application to the ordinary statutory instruments which must be construed in the context and should not be given wider amplitude than is warranted by the use of the term or context in which it occurs or with reference to the other provisions in the statute which have relation to it. To accept this argument that Section 3 (1) also confers a power to abolish or dissolve would be to postulate a total delegation of legislative function without indicating the necessary guide-posts, which alone makes a delegation valid. (Vide Art. 143, Constitution of India and Delhi Laws Act (1912), In re, 1951 SCJ 527: (AIR 1951 SC 332)).
(25) Mr. Kodandaramayya's argument that the word 'reconstitute' means 'cancel and then constitute' with the result that a reconstituted Samithi is a new body appears attractive. If this word were to be construed in its ordinary meaning, to be applied to some set of circumstances which do not as in the case of corporate bodies have certain legal incidents attached to it, it might be given that meaning. But where the effect of abolition would have to be provided for and certain legal incidents flow from that abolition, that construction cannot be given.
(26) Even assuming for arguments sake that the power to dissolve exists, there is no provision for devolution of the rights and liabilities of the abolished Samithis. But it is argued that it can be done by rules or under the Henry VIII clause. If a power to abolish can be spelled out, then recourse may perhaps be had to the rule-making power. But no such rules have been framed, which will only show that the Government never envisaged the exercise of that power in the manner now sought to be effected. Henry VIII clause cannot at any rate be used for the purpose of delegating a legislative function, as held in the Delhi Laws Act case, 1951 SCJ 527: (AIR 1951 SC 331), which would be the case if substantive provisions as to devolution have to be left to be dealt with under that clause, which could only be dealt with by the Legislature.
(27) In the other Acts, where a similar power to bring into being corporate body by notification is conferred on the Government, we have noticed that the power to dissolve was specifically conferred and in some other Acts a power to cancel notification and the various steps that are required to be taken as a consequence of the dissolution of a body corporate have been provided for. Even in the Madras Village Panchayats Act, 1950, and the present Gram Panchayat Act, 1964. provisions have made to cancel a notification.
(28) We will merely take the Gram Panchayats Act as an example of how the Legislature has provided for the increase or decrease in the area, cancellation of notifications and what is to be done in the event of dissolution or total abolition. Under Section 3, the Commissioner has power to declare a revenue village or part thereof to be a village for the purpose of the Act and specify the name of the village. Under sub-section (2) of Section 3, the Commissioner may, by notification and in accordance with the rules as may be prescribed in that behalf (a) exclude from a village any local area comprised therein ; or (b) include in a village any adjoining local area in the same revenue taluk ; or (c) cancel a notification issued under sub-s. (1) ; or (d) alter the name of the village. The powers in clauses (a) to (d) are subject to the proviso that before issuing a notification under that sub-section, the Commissioner shall give the gram panchayat which will be affected by the issue of such notification an opportunity of showing cause against the proposal and consider the objections, if any, of such gram panchayat. Under sub-section (3) of Section 3, the Commissioner is empowered to pass orders as he may deem fit (a) as to disposal of the property vested in a gram panchayat which has ceased to exist, and the discharge of its liabilities ; and (b) as to the disposal of any part of the property vested in a gram panchayat which has ceased to exercise jurisdiction over any local area, and the discharge of the liabilities of the gram panchayat relating to such property from such local area.
An order made under that sub-section may contain such supplemental, incidental and consequential provisions as the Commissioner may deem necessary, and in particular may direct (i) that any tax, fee or other sum due to the gram panchayat or where a gram panchayat has ceased to exercise jurisdiction over any local area, such tax, fee, or other sum due to the gram panchayat as relates that area, shall be payable to such authorities as may be specified in the order ; and (ii) that appeals, petitions, or other applications with reference to any such tax, fee or sum which are pending on the date on which the gram panchayat ceased to exercise jurisdiction over the local area, shall be disposed of by such authorities as may be specified in the order. These provisions are a clear indication of the realisation by the Legislature that the Panchayat being a corporate body under Section 4 (3) cannot be dissolved without specific powers in that behalf. It, therefore, provided amply not only for the increase or decrease in the area or change in the name of the village, or cancelling a notification issued under Section 3 (1) resulting in the abolition of the panchayat and its corporate existence and has provided under sub-section (3) of Section 3 as to what has to be done in respect of its properties, rights and obligations and the actions already taken by it.
It has further provided, in conformity with the principles of natural justice, a right of hearing to the panchayat which will be affected. We have already noticed how the Gram Panchayats Act has made transitory provisions in this regard. The Zilla Parishads Act is a complementary piece of legislation, where the panchayat created under the Gram Panchayats Act forms the basis of the superstructure of the Samithi and one would have expected if it was the intention of the Legislature to confer power of abolition of those samithis already constituted, to enact provisions similar to those enacted in the Gram Panchayats Act. Even in Section 63 of the Zilla Parishads Act, which is a provision to supersede or dissolve an existing panchayat samithi where the working of Panchayat Samithi is not satisfactory, before supersession or dissolution is effected it has provided for a notice being given to the Samithi to correct itself and only then to supersede it or dissolve it as the case may be for a certain period and entrusted its affairs to a person to be appointed by the Government . It has also conferred powers of reconstitution of a superseded or dissolved Panchayat Samithi .
The effect of supersession or dissolution is that all its members, including its president, chairman or vice-president or vice-chairman, as the case may be, are forthwith to be deemed to have vacated their offices as such and they shall not be entitled to be restored to office after the expiration of the period of supersession. The members of a reconstituted Panchayat Samithi or Zilla Parishad shall enter upon their offices on the date specified for its reconstitution. In other words, once they are deemed to have vacated the office, fresh elections will take place and new members will be elected. This seems to envisage a co-existence with the area of the superseded Samithi, for the reconstituted Panchayat Samithi steps into the shoes of the old Panchayat Samithi ; and that probably is the reason why no separate provision for devolution has been made, though during the interim period of its suspension and reconstitution , there is no provision for carrying on its affairs by a person to be appointed by the Government.
(29) In our view, the power of redelimitation under Section 3 (3) does not extend to delimit a Block for which a Panchayat Samithi has already been constituted, in such an unreasonable manner as either to completely extinguish the other Samithi or to so denude it as to affect its efficient functioning, or to affect its rights and liabilities, which it will if a substantial portion of its area is delimited under the guise of this power. The absence of any such specific power for its exercise would militate against the construction suggested. In this view, it is unnecessary to consider the other questions, viz. , that even if there is power there is discrimination, that it is a naked and arbitrary power or that if offends Art. 14 of the Constitution or that the exercise of that power is vitiated by mala fides.
(30) It remains to be considered whether the petitioners have locus standi to present this writ petition challenging the power of the Government and the vires of the notification. The learned Government Pleader contends that unless the personal right of any of the petitioners is affected, his petition cannot be entertained. The petitioners are either ex-officio members of the existing Panchayat Samithis or the Panchayat Samithis to come into being or those who intend to contest to the Panchayat Samithi which will come into being on 1-7-1964 ; as such, none of them in praesenti have any personal right or if they have, that is not being infringed. In support of the proposition that a personal right must be affected before his petition can be entertained, he has cited the judgment of their Lordships of the Supreme Court in Calcutta Gas Company (Prop.) Ltd. v. State of West Bengal, : AIR1962SC1044 .
In that case, following the previous judgments in State of Orissa v. Madan Gopal, : 1SCR28 and Charanjit Lal v. Union of India, : 1SCR869 their Lordships held that Art. 226 in terms does not describe the classes of persons entitled to apply thereunder ; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right ; that the existence of the right is the foundation of the exercise of jurisdiction of the High Court under Art. 226 ; that the legal right that can be enforced under Art.226, like Art. 32, must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief : and that the right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. In that case the Supreme Court was dealing with a contract under which the appellant had the right to manage the Oriental Gas Company for a period of 20 years and to receive remuneration for the same. Under Section 4 of the Oriental Gas Company Act, 1960, the management of the company was transferred to the State Government with effect from the appointed day and for a period of five years, thereafter, and the company, its agents and servants shall cease to exercise as from that date management or control the same.
In the circumstances, their Lordships observed that there was certainly a legal right accruing to the appellant under the agreement and that was abridged, if not destroyed, by the impugned Act, and that it was therefore impossible to say that the legal right of the appellant was not infringed by the provisions of the impugned Act. Their Lordships held that as the appellant's personal right to manage the company and to receive remuneration therefor had been infringed by the provisions of the statute, it had locus standi to file the petition under Art. 226 of the Constitution. Their Lordships made it clear that the right that is to be enforced should ordinarily be the personal or individual right and they were also careful enough to point out that Art. 226 in terms does not describe the class of persons entitled to apply thereunder, but that it is implicit in the exercise of the extra-ordinary jurisdiction that the relief asked for must be one to enforce a legal right.
(31) The true test, in our view, for determining the petitioners' locus standi to maintain an application is whether the petitioner is directly affected by the statute, that is whether he is a person whose legal rights are governed by the impugned Act and whether he is prejudicially affected by the differential treatment prescribed by the impugned statute. In Srikrishan v. State of Andhra Pradesh, (S) AIR 1957 Andh Pra 734 at p. 739 where the States Reorganisation Act affecting the erstwhile Hyderabad State was challenged, a similar objection as to the maintainability of the petition was raised by the Government Pleader. There it was contended that the Act does not confer a personal or pecuniary interests of the petitioner, that the passing of the Act did not cause any legal injury to the petitioner's personal or property rights and therefore, the application, at his instance, is not maintainable. It was observed by a Bench to which one of us was a party Article 226 does not describe the qualifications of a person entitled to file an application for a relief under that Article. As such the High Court can, under that issue directions or writs described therein for the enforcement of any rights conferred by Part III or for any other purpose. It is true that, in the exercise of its discretion, it will not issue such directions unless the petitioner received a legal injury.
Relying on the observations of the learned Judges in Ramamoorthi, In re, : AIR1953Mad94 Subba Rao C. J. as he then was observed that
'as a rule of guidance applicable to ordinary cases, we accept, with great respect, the aforesaid observations of the learned Judges. But in extraordinary cases, where, for instance, an Act is passed by the Parliament or by a Legislature in excess of its constitutional power reshaping the map of India, we find it difficult to say that a citizen of India, who lived his life-time as a permanent resident of one of States abolished, has no personal interest to maintain an application. But as we have held against the petitioner on the merits, we do not propose to express our final opinion on this question.'
(32) Applying this parity of reasoning it might well be contended that persons residing in a Block and who are to be served by the Samithi, particularly the residents of an abolished Block, have a personal right to maintain a petition under Article 226. In election matters, as pointed out by the Supreme Court in Mallappa Basappa v. Basavaraj Ayyappa, : 1SCR611 .
'the contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law-power. An enquiry petition is not a mater in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process. An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principle party interested'.
In Venkateswara Rao v. State of Andhra Pradesh, (1958) 1 Andh W. R. 480 : (AIR 1958 Andh Pra 458) a Bench of our High Court consisting of Subbarao, C. J., as he then was and Srinivasachari, J. was dealing with two preliminary points raised by the Government Pleader as to the maintainability of the petitions. His first objection was that the petitioners have no legal interest in the matter to maintain the petitions. In the counter-affidavit it is stated that the petitioners are only rate-payers, that they have no specific legal interests in the matter, and that therefore, they are not in any way aggrieved by the redistribution of the Municipality into wards. His second objection was that the division of the wards and the fixing of the programme for the elections are administrative acts and, therefore, the writs are not maintainable. With respect to the first, Subbarao, C. J. , as he then was, adopted the reasoning of Viswanadha Sastry J. , in Venugopalan v. Commissioner, Vijayawada Municipality, (1956) Andh W. R. 711 : (AIR 1957 Andh Pra 833) for rejecting a similar contention. The observations of Viswanadha Sastry J. , which were adopted are contained at page 714 (of Andh W R ) : (at p. 836 of AIR ) and are as follows :
'It cannot be said that the applicants have no specific legal right to be enforced or that their right would not be affected or infringed by the act of the respondents in holding the elections. The matter may be looked at in one of two ways. The applicants are electors in the constituencies to which the proposed election relate. They can rightly claim that in a democratic set up it is their valuable right not only to exercise their vote but also to see that their wards are properly represented in the Municipal Council and for that purpose elections conducted in accordance with the law framed for that purpose. A violation of the statutory rules of election affects the applicants who are voters are given an equal right with the candidates, to call in question an illegal and invalid election. The applicants have another and a more substantial right as rate-payers who contribute to the municipal fund and they have a right to prevent the municipal authorities to which they pay rates from spending municipal funds on unauthorised and illegal elections. Under rule 42 (e) of the Taxation and Finance Rules, Part II framed under the District Municipalities Act a Municipal Council is authorised to incur expenses in connection with elections, that is to say, elections authorised by law. As rate-payers the applicants have a specific legal interest which entitles them to come to Court for the protection of that interest and in order to prevent the misapplication of municipal funds on elections held contrary to law. This aspect of the matter is well brought out in the Irish case of the Queen v. Drury (1894) 2 Ir. R. 489 extracted in Municipal Corporation Bombay v. Govind Laxman, AIR 1949 Bom 229. Rate-payers who have contributed to the Municipal rates are injured in their property within the meaning of the rules regulating the issue of a writ of mandamus if the rates are misapplied for unlawful enterprises'.
On the second question also it was held that if they were to hold that the respondents have not discharged their duties enjoined on them under the District Municipalities Act and that they purported to perform the duties contrary to the provisions of the Act, a writ of mandamus will certainly issue to direct them to discharge their duties in compliance with the provisions of the Act. Thus both the preliminary objections were rejected.
(33) An examination of the above cases leaves us in little doubt that the petitioners who are elected to the Village Panchayat which formed part of the abolished Panchayat Samithi and were not only electors but also have right to say to which Samithi they should belong , certainly have locus standi to challenge the validity of the notification. Consequently , that objection cannot be sustained.
(34) In the result, the notification G. O. Ms. No. 532 dated 15.5.1964 of the Panchayat Raj Department of the Government of Andhra Pradesh which is the only notification that is impugned, being ultra vires the powers vested in the Government under Sections 3 (3) and 2 (b) is quashed not only to the extent the delimitation of the Block effects the abolition of the Samithi but also to the extent that such abolition affects the reconstitution of other Samithis. The petition is allowed with costs, Advocate's fee Rs. 50/-.
(35) This order will govern similar writ petitions filed to quash the G. O. Ms. 532 dated 15-5-1964.
(36) Petition allowed.