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Synopsis

The Supreme Court recently observed that in absence of any specific challenge to the validity of the statutory provisions, a High Court ought not to undertake the exercise of going into the question of repugnancy.

In absence of specific pleadings, a Writ Court ought not to go into the issues of repugnancy or lack of legislative competence, a division bench of the Supreme Court has observed.

"Without holding that the statutory provisions are not constitutionally valid, the High Court could not have issued a direction not to implement the statutory provisions", a bench of Justices Abhay S Oka and Rajesh Bindal has added.

These observations came to be made by the Supreme Court while allowing an appeal filed against the Bombay High Court's judgment going into the validity of the provisions of Zilla Parishad and Panchayat Samiti Act, 1961.

Supreme Court found that in the writ petition before the High Court, there was a vague averment that Sections 12(2) and Section 58(1b) of the Zilla Parishad and Panchayat Samiti Act, 19612 are not in consonance with parts IX and X of the Constitution of India.

"we are of the view that the entire exercise undertaken by the High Court of going into the issue of validity of the provisions of the 1961 Act and the rules framed thereunder was uncalled for. The reason is there was no challenge to the validity of the provisions of the 1961 Act in the writ petition...", the top court said.

In the impugned judgement, the High Court had recorded that there was a conflict between certain provisions of the 1961 Act and Section 4(g) of anchayat (Extension of Scheduled Areas) Act, 1996 (PESA). It was also observed that there is a conflict between proviso to Rule 4(2) of the 1996 Rules framed under the 1961 Act with Section 4(g) of PESA.

"Surprisingly, the High Court expressed a view that the law departments of the State and the Union should have a dialogue to remove the discrepancies. Further, the Court directed that till the discrepancies are removed by the legislatures, the provisions of the 1961 Act and the 1996 Rules framed thereunder to the extent of repugnancy with PESA 4 shall be ignored “for practical application”. Thereafter, the High Court proceeded to issue a Writ of Mandamus directing the State to implement the provisions of PESA for the elections of Panchayats at all levels in the districts of Dhule and Nandurbar..", Supreme Court  has said.

Court went on to allow the appeal and set aside the impugned judgment while noting that there is not even a whisper of a challenge incorporated in the writ petition to the 1961 Act and the rules framed thereunder, the State was not called upon to answer the issue of either repugnancy or lack of legislative competence and there was no notice issued to the Advocate General of the State.

Case Title: DHANRAJ vs. VIKRAM SINGH & ORS.